EX-10.13 46 d233905dex1013.htm OPERATIONS MANAGEMENT AGREEMENT BETWEEN VDARA CONDO HOTEL, LLC AND CITYCENTER CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT AMONG VDARA CONDO HOTEL, LLC AND CITYCENTER VDARA DEVELOPMENT, LLC FOR CITYCENTER LAS VEGAS,...

EX-10.13 46 d233905dex1013.htm OPERATIONS MANAGEMENT AGREEMENT BETWEEN VDARA CONDO HOTEL, LLC AND CITYCENTER

Exhibit 10.13

CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT

AMONG

VDARA CONDO HOTEL, LLC

AND

CITYCENTER VDARA DEVELOPMENT, LLC

FOR

CITYCENTER

LAS VEGAS, NEVADA

NOVEMBER 15, 2007


ARTICLE 1	DEFINITIONS AND EXHIBITS	2

1.1	Definitions	2

1.2	Exhibits	2

ARTICLE 2	TERM	2

2.1	Term	2

ARTICLE 3	ENGAGEMENT OF OPERATOR	2

3.1	Grant of Authority	2

3.2	Limitations on Authority	5

3.3	Standard of Care	5

3.4	Obligations of MGM MIRAGE	6

ARTICLE 4	PRE-OPENING ACTIVITIES	6

4.1	Pre-Opening Services	6

4.2	Costs and Expenses	7

4.3	Pre-Opening Budget	7

4.4	Funding of Pre-Opening Expenses	8

4.5	Monthly Statements	8

ARTICLE 5	CONDOMINIUM DOCUMENTS; HOTEL RELATED SERVICES; RENTAL PROGRAM	9

5.1	Condominium Documents	9

5.2	Condo-Hotel Services for the Residential Units	9

5.3	Rental Program	11

5.4	Management of Condominium	11

5.5	Operator Covenants and Acknowledgments	12

5.6	Operator Rental Program Rights and Obligations	12

ARTICLE 6	PAYMENT OF FEES	12

6.1	Operating Fee	12

6.2	Time and Manner of Payment	13

6.3	Payment of Expenses	13

6.4	Quarterly and Annual Reconciliations	13

6.5	Interest	14

ARTICLE 7	OWNER’S OBLIGATIONS	14

7.1	General Obligations	14


ARTICLE 8	PERSONNEL	16

8.1	Hiring of Personnel	16

8.2	Compensation of Personnel	16

8.3	Personnel Information	17

8.4	Unions	17

ARTICLE 9	PROJECT BUDGET	18

9.1	Submission and Approval of Project Budget	18

ARTICLE 10	FUNDS AND ACCOUNTS; MAINTENANCE	20

10.1	Minimum Working Capital Amount	20

10.2	Reserve Fund Contribution	20

10.3	Establishment of Shared Components Reserve Fund	21

10.4	Repairs and Maintenance	21

10.5	Emergency Repairs	21

10.6	Enforcement of Guaranties and Warranties	21

10.7	Impositions and Insurance Premiums	21

10.8	Operating Account	22

10.9	Control and Ownership of Accounts	22

10.10	Pledge of Credit	22

ARTICLE 11	BOOKS AND RECORDS	22

11.1	Maintenance of Books and Records	23

11.2	Inspection of Books and Records	23

11.3	Monthly and Quarterly Reports	23

11.4	Annual Statements	24

11.5	Audit Right of DW Member	24

ARTICLE 12	CENTRALIZED SERVICES AND REIMBURSABLE SERVICES	25

12.3	Reimbursable Services	26

ARTICLE 13	INSURANCE	27

13.1	Insurance to Be Maintained by Owner During Term	27

13.2	Insurance to Be Maintained by Manager During Term	27

13.3	Waiver of Liability	27

ARTICLE 14	CONFIDENTIAL INFORMATION	28

14.1	Confidential Information	28

iii


ARTICLE 15	MORTGAGES AND FINANCING	28

15.1	Right to Mortgage	28

15.2	Subordination	28

15.3	Evidence of Subordination; Delivery of Separate Documents and Instruments	28

ARTICLE 16	PERFORMANCE TERMINATION	29

16.1	Performance Test	29

16.2	Cure Right	29

ARTICLE 17	DEFAULT and TERMINATION	29

17.1	Events of Default	29

17.2	Excused Non-Performance	30

17.3	Remedies and Other Termination Rights	31

17.4	DW Member Enforcement; Termination Rights	31

17.5	Operator’s Termination Rights	33

17.6	Rights and Obligations on Termination	33

17.7	WARN Act; 401(k) Compliance	35

ARTICLE 18	CASUALTY AND CONDEMNATION	36

18.1	Casualty	36

18.2	Condemnation	36

ARTICLE 19	INDEMNIFICATION	37

19.1	Indemnification by Operator	37

19.2	Indemnification by Owner	37

19.3	Survival	37

ARTICLE 20	REPRESENTATIONS AND WARRANTIES	37

20.1	Operator’s Representations and Warranties	37

20.2	Owner’s Representations and Warranties	38

ARTICLE 21	GENERAL PROVISIONS	39

21.12	Estoppel Certificate	44

21.33	Compliance with Securities Laws	50

CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT

This Condo-Hotel Operations Management Agreement (this “Agreement”) is entered into as of the Effective Date, by and among Vdara Condo Hotel, LLC, a Nevada limited liability company (“Operator”) and CityCenter Vdara Development, LLC, a Nevada limited liability company (“Developer”, on behalf of Owner). Operator and Owner are sometimes referred to collectively in this Agreement as the “Parties” and individually as a “Party.”

RECITALS

A. CityCenter Land, LLC, a Nevada limited liability company (“CCL”), owns the land on which Owner is in the process of constructing the CityCenter Project. For purposes of this Agreement, unless specifically indicated otherwise, as the context requires, the defined term “Owner” shall refer to (1) CCL, as the owner of the land on which the Condo-Hotel is located, before transferring such land to Developer, (2) Developer, as the owner of the land on which the Condo-Hotel is located, after taking transfer of such land (all subject to the Inter-Company Agreement), and in its role as the developer and owner of the Condo-Hotel before selling and/or transferring all of its interest therein, and (3) CityCenter Vdara Condo Hotel Holdings, LLC, a Nevada limited liability company (“Vdara Condo Hotel Holdings”), as owner of the Hotel Unit after taking transfer thereof (all subject to the Inter-Company Agreement).

B. As part of the CityCenter Project, Developer is developing and constructing a hotel condominium project containing approximately 1543 residential units (the “Residential Units”), as well as food and beverage facilities and all other amenities provided therein (collectively, the “Condo-Hotel”).

C. The Condo-Hotel will be known as the “Vdara”.

D. Owner intends to assign to Developer all of its right, title and interest in and to the land on which the Condo-Hotel is located as well as any improvements located thereon. Developer, in turn, shall assign that portion of the Condo-Hotel defined in the certain Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Vdara Condo Hotel, as amended from time to time (the “Declaration”), as the “Hotel Unit” to the Hotel Unit Owner.

E. Developer intends to sell the Residential Units to individual purchasers (such purchasers or any subsequent third-party owners of the Residential Units, the “Unit Owners”) and otherwise retain ownership of certain other portions of the Condo-Hotel, all pursuant to the terms set forth in the Declaration.

F. Developer has the approval and is authorized on behalf of CCL and Vdara Condo Hotel Holdings to enter into this Agreement and, if necessary, to assign this Agreement to either such party.

G. Operator is experienced and knowledgeable in the management and operation of first-class luxury hotels, condo-hotels and residential projects, directly and through affiliated entities.

H. Operator possesses the skills, experience and capability to manage and operate the Condo-Hotel in accordance with this Agreement.

I. The Parties desire to enter into this Agreement for the management, including the management of Pre-Opening Services, of the Condo-Hotel following the completion of its construction.

AGREEMENT

NOW THEREFORE in consideration of the recitals, promises and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties hereby agree:

ARTICLE 1

DEFINITIONS AND EXHIBITS

1.1 Definitions. All capitalized terms not defined herein shall have the meanings assigned to such terms in the Master Glossary of Definitions attached hereto as Exhibit A.

1.2 Exhibits. The exhibits attached hereto are incorporated in, and deemed to be an integral part of, this Agreement.

ARTICLE 2

TERM

2.1 Term. This Agreement shall be effective upon full execution and delivery as of the Effective Date. The term of this Agreement shall commence as of the Effective Date, and shall continue until the first to occur of (i) the termination of this Agreement resulting from an Event of Default or other right of termination set forth in ARTICLE 17, (ii) the termination, dissolution or other liquidation of the Joint Venture, in accordance with the terms of the Joint Venture Agreement, or (iii) the termination of this Agreement resulting from a Performance Test Failure as set forth in ARTICLE 16 (the “Term”).

ARTICLE 3

ENGAGEMENT OF OPERATOR

3.1 Grant of Authority.

3.1.1 Operator. Except as otherwise specified in this Agreement, the management and operation of (i) the Hotel Unit and (ii) the Residential Units, to the extent the right to do so has been conferred upon Operator pursuant to the (a) Rental Program Agreement and (b) the Condominium Documents, shall be under the exclusive supervision and control of Operator, and Operator shall operate the Hotel Unit and the Residential Units, as applicable, in a proper and efficient manner that is consistent with the Operating Standard, Condominium Documents and Rental Program Agreement. Except as otherwise specified in the Joint Venture Agreement, this Agreement, and further subject to Sections 3.2 and Section 3.3 hereof, Operator shall have discretion and control, free from interference, interruption, or disturbance, in all matters relating to the management and operation of the Hotel Unit and the Residential Units, as

applicable. Owner’s grant of authority to Operator pursuant to this Section 3.1 with regard to the Hotel Unit shall specifically include the exclusive power and authority, subject to and consistent with the provisions of this Agreement, the Joint Venture Agreement, and the Project Budget for the Condo-Hotel (including any limitations on authority and duty) to:

(a) determine the terms of admittance for the Condo-Hotel and each portion thereof, charges for rooms and commercial space, charges for entertainment, charges for use of facilities, food and beverages, which rights shall specifically allow Operator, in its reasonable discretion and generally consistent with the business practices of MGM MIRAGE, the Project Budget and the standard of care set forth in Section 3.3, to charge varying rates for Complimentaries to different customers or groups of customers; provided, however, no amount of deemed revenue attributable to such Complimentaries shall be included in Gross Revenue for purposes of any calculation under this Agreement (including, without limitation determining the occurrence of a Performance Test Failure);

(b) establish all credit policies designed, among other things, to minimize the risk of loss;

(c) collect and remit to any Governmental and Regulatory Authority all sales, occupancy, value added, use, excise and similar taxes to be collected by the Condo-Hotel and the Rental Program directly from, guests or other customers on all revenues;

(d) establish policies concerning the receipt, holding and disbursement of funds, the establishment and maintenance of Operating Account and appropriate records management and retention, the procurement of Operating Supplies and other goods and services and all activities necessary for the operation and management of the Condo-Hotel and the Rental Program, as more specifically set forth herein;

(e) supervise and purchase all Equipment, Operating Supplies and other goods and services as necessary to operate the Condo-Hotel and the Rental Program in accordance with the Project Budget;

(f) negotiate and enter into such reasonable contracts, leases, licenses, arrangements, and concessions agreements for any Condo-Hotel operations, parking, restaurant, bar, or food service operations, retail space, or any other commercial operation in or about the Condo-Hotel as an Operating Expense, as Operator deems reasonably necessary or advisable in connection with the operation of the Condo-Hotel and the Rental Program in accordance with this Agreement;

(g) perform the obligations of Owner, as landlord, or concessionaire, under leases, licenses, and contracts made or granted with respect to space within the Condo-Hotel and the Rental Program;

(h) collect rents and other sums collectible under leases, licenses, or contracts made or granted with respect to (i) space within the Condo-Hotel and (ii) the Rental Program;

(i) perform the Hotel Related Services, A la Carte Services and Transient Services, as applicable

(j) collect all charges imposed in connection with the payment of the “Hotel Shared Costs” (as defined in Section 9.1 of the Declaration);

(k) to the extent applicable, collect the Daily Transient Rental Fee and the Monthly Transient Rental Fee charged in connection with Transient Services;

(1) to the extent applicable, collect all charges imposed in connection with the provision of A la Carte Services;

(m) subject to Section 8.1, hire, promote, discharge, supervise, train and, subject to Legal Requirements, determine the terms of employment for the Personnel designated to the Condo-Hotel and determine and implement all personnel policies and practices relating to the Condo-Hotel and the Rental Program;

(n) commence, settle or compromise, in its name or in the name of Owner, (i) any Claim or litigation required to collect charges, rent or other income for the Condo-Hotel, or (ii) any legal action or proceeding (or any related group of actions or proceedings) relating to any subject matter of this Agreement and/or the Project Agreements in an amount not exceeding Five Million Dollars ($5,000,000), it being acknowledged and agreed that Operator shall promptly forward notice of any such Claims to the appropriate insurer;

(o) perform those services relating to the operation of the Rental Program required of Operator as particularly set forth in the Rental Program Agreement;

(p) establish appropriate rental policies and procedures for the rental of Residential Units to third parties by (i) individual Unit Owners themselves or (ii) third party rental agents, as applicable;

(q) perform all the duties and obligations conferred upon the Hotel Unit Owner under the Condominium Documents on behalf of the Hotel Unit Owner;

(r) perform all acts in and about the Condo-Hotel, as reasonably necessary to comply with Legal Requirements and/or Insurance Requirements; and

(s) subject to, and in accordance with, ARTICLE 11 supervise and maintain complete books and records for the Condo-Hotel consistent with the policies for the wholly owned properties of MGM MIRAGE and GAAP, as applicable;

3.1.2 In addition, Operator shall provide the Condo-Hotel with such advertising, public relations, and promotional services as are judged by it to be reasonably necessary and appropriate in order to promote the name and facilities of the Condo-Hotel, including, but not limited to, providing assistance in the following areas:

(a) developing and implementing the Condo-Hotel’s individual marketing plan with Owner’s input and consultation, including planning, publicity and internal

communications, and organizing and budgeting the Condo-Hotel’s advertising and public relations programs;

(b) selecting and providing guidance as required for the public relations Personnel;

(c) consistent with the provisions of Section 21.26 preparing and disseminating news releases for trade and consumer publications, both national and international; and

(d) selecting an advertising agency, if any.

3.1.3 At all times during the Term, the Condo-Hotel shall be promoted as an affiliated “MGM MIRAGE” condo-hotel and as part of the MGM MIRAGE system of hotels, in each case, consistent with its then-current practices as applicable to the Operator Group Hotels. Prior to the Effective Date, Operator shall provide written confirmation, in form and substance reasonably acceptable to Owner, that MGM MIRAGE has authorized Operator to use the Trademarks “MGM MIRAGE” during such period and for such purpose and otherwise for the development, identification, marketing, management and operation of the Condo-Hotel pursuant to this Agreement.

3.1.4 Operator shall be entitled to display MGM MIRAGE’s literature and literature from other MGM MIRAGE brands in the Condo-Hotel during the Term, as Operator may determine in accordance with the brand strategy for the Operator Group Hotels from time to time during the Term.

3.2 Limitations on Authority. Notwithstanding any authority granted to Operator pursuant to any other provision of this Agreement (including any Exhibits to this Agreement), Operator shall not, without the prior written consent of Owner, take any action that would otherwise (i) conflict with Section 9.1.5 hereof, or (ii) constitute a Major Decision under the Joint Venture Agreement.

3.3 Standard of Care. Operator shall, in fulfilling its duties and obligations under this Agreement, act in a manner consistent with an appropriate standard of care, efficiency, quality and diligence typically exercised by first-class companies performing similar types of services for projects of a quality comparable to the CityCenter Project and consistent with the fiduciary relationship of trust and confidence between Owner and Operator, which evidences Operator’s good faith and fair dealing and the application of its reasonable business judgment in the best interest of the Condo-Hotel. Furthermore, Operator shall, in fulfilling its obligations hereunder (including, but not limited to, any decisions regarding whether or not the Condo-Hotel will participate in specialized initiatives, including, but not limited to, Purchasing Programs), act at all times in a manner that is consistent with the fiduciary duty owed by Operator to Owner and consistent with the fiduciary relationship of trust and good faith and confidence between Owner and Operator. Operator acknowledges and affirms to Owner, and each of its members, respectively, that the actions, duties and obligations contemplated herein to be performed and/or undertaken by Operator are not in any way intended, nor will such actions, duties and obligations supplant any duty or obligation to be performed by the MGM Member in its capacity as

Managing Member pursuant to the terms of the Joint Venture Agreement. Operator acknowledges that all actions taken by it pursuant to this Agreement, whether on its own behalf or through its Affiliates and subsidiaries (including, without limitation, Operator), are and shall be deemed actions taken by the MGM Member for and on behalf of Owner as if taken by MGM Member as the Managing Member under the Joint Venture Agreement (and MGM Member shall be responsible and liable for all such actions or omissions as if taken by the MGM Member itself); provided, however, that any action or omission of Operator made under this Agreement shall not constitute a breach of the Joint Venture Agreement by the MGM Member unless such action or omission, if made by the MGM Member, would constitute a breach under the Joint Venture Agreement. During the Term, Operator shall not manage or operate any business unrelated to the Condo-Hotel or the other Components of the CityCenter Project. Owner acknowledges, however, that Affiliates of MGM MIRAGE (excluding Operator and its subsidiaries) do and will engage in operations, ownership, or other activities or businesses that compete with the operations and business of the Condo-Hotel, and such actions and conduct are expressly permitted.

3.4 Obligations of MGM MIRAGE. MGM MIRAGE shall cause Operator to perform all of its obligations and duties pursuant to the terms and conditions of this Agreement.

ARTICLE 4

PRE-OPENING ACTIVITIES

4.1 Pre-Opening Services. Owner acknowledges and agrees that various pre-opening activities for the Operator have commenced as of the Effective Date and are continuing, and will continue to ensure that the Condo-Hotel is ready to accept guests by the Opening Date. These pre-opening services are being performed pursuant to and in accordance with the pre-opening budget established as part of the construction budget approved in connection with the execution of the Joint Venture Agreement, or, if not previously provided, shall comprise a portion of the Annual Budget (as defined in the Joint Venture Agreement) to be prepared and approved as required by the Joint Venture Agreement (the “Pre-Opening Budget”). These services (collectively, the “Pre-Opening Services”) include, without limitation:

4.1.1 subject to Section 8.1, hiring and training of all Personnel;

4.1.2 pre-marketing and marketing programs, including pre-opening promotion and opening celebrations, and the preparation of a pre-opening marketing plan which shall include, without limitation: (a) public relations and communications activities, (b) implementation of a marketing, advertising and reservations program, and (c) representation of the Condo-Hotel by regional sales and corporate marketing personnel of Operator and its Affiliates to position the Condo-Hotel in accordance with the Operating Standards;

4.1.3 administering and coordinating with Owner applications for or transfers of licenses, permits, approvals, and/or other instruments necessary for the management and operation of the Condo-Hotel as contemplated by this Agreement;

4.1.4 causing the purchase of initial Operating Supplies and Operating Equipment to the extent not purchased and installed by Owner during the development of the Condo-Hotel as set forth in the approved Pre-Opening Budget;

4.1.5 preparing necessary budgets, including without limitation, the Pre-Opening Budget;

4.1.6 identifying tenants for retail outlets and lobby space in the Condo-Hotel;

4.1.7 negotiating concession contracts and/or leases for retail outlets and lobby space in the Condo-Hotel;

4.1.8 coordinating the testing of operations of the Condo-Hotel, including incorporating any other technology systems required to operate the Condo-Hotel or provide the Centralized Services;

4.1.9 providing a task force of experts and Personnel to supervise and assist with certain pre-opening and opening operations;

4.1.10 subject to any conditions required by the Joint Venture Agreement, determining the Opening Date; and

4.1.11 rendering such other services incidental to the preparation and organization of the Condo-Hotel’s management and operation as may be required.

4.2 Costs and Expenses. The costs and expenses relating to the activities described in Section 4.1 above for the initial opening of the Condo-Hotel for the CityCenter Project (collectively, the “Pre-Opening Expenses”) may include, without limitation but subject to Section 4.3 hereof, each of the following items as they directly relate and are directly incurred by the Condo-Hotel as a Pre-Opening Expense: (i) Compensation; (ii) interim office space costs, if any, for non-corporate-related services; provided, however, that no rent shall be charged or reimbursed with respect to the sales office, Perini field office, or the project office (such expenses may continue to be incurred as a Reimbursable Expense after the Opening Date); (iii) legal, accounting, and other professional fees; (iv) telecommunications expenses; (v) staff hiring and training costs; (vi) opening celebration costs; (vii) utilities, including, without limitation, heat, air conditioning, light, power, water, and any sewage treatment and disposal costs; provided, however, with respect to the sales office, Perini field office and the project office, such expenses may continue to be incurred as a Reimbursable Expense after the Opening Date; (viii) advertising and promotion expenses; (ix) real property taxes; and (x) consistent with the provisions of Section 6.3, the reasonable travel, living, and other out-of-pocket expenses of Personnel from the corporate and regional offices of Operator and its Affiliates.

4.3 Pre-Opening Budget. Operator has prepared and submitted to Owner the Pre-Opening Budget (which budget is a component of the larger Project Budget (as defined in the Hotel and Casino Management Agreement)), which has been approved pursuant to the Joint Venture Agreement); provided, however, it is understood and agreed that changes in development plans, business plans, market conditions, general economic conditions and other unforeseen circumstances may make adherence to the Pre-Opening Budget impractical or

impossible, and Operator shall be entitled to depart from the Pre-Opening Budget and incur Pre-Opening Expenses in excess of the Pre-Opening Budget without DW Member’s approval to the extent any such departure does not constitute a Major Decision. Operator shall notify Owner promptly of any substantial change to the Pre-Opening Budget and shall provide all information in relation to such changes as Owner may reasonably request. Furthermore, if the Opening Date is delayed from the originally projected dates (other than a delay caused by Operator), the Pre-Opening Budget shall be revised to reflect any increases in Pre-Opening Expenses caused by such delay after consultation with and approval by Owner in accordance with the Joint Venture Agreement (or by DW Member, as may be required by the Joint Venture Agreement). Increased Pre-Opening Expenses may include, as applicable, all out-of-pocket cancellation penalties if Operator cancels reservations made for guestrooms, meeting rooms, and other areas as a result of such delay; provided, however, that in the event that such delay is caused by a breach of the Development Management Agreement by the Development Manager, such increase in Pre-Opening Expenses resulting from such out-of-pocket cancellation penalties shall be deemed an Operating Expense in calculating EBITDAM and the corresponding Incentive Management Fee for the first Operating Year.

4.4 Funding of Pre-Opening Expenses. Other than as set forth in Section 4.3, Pre-Opening Expenses incurred in accordance with this ARTICLE 4 shall be borne solely by Owner as a capital expense and shall not be classified as an Operating Expense. To facilitate the funding of Pre-Opening Expenses, Owner shall maintain a bank account or, at its option, line of credit with an insured bank designated by Owner and approved by Operator. Owner shall ensure that the bank account or line of credit may be drawn upon for Pre-Opening Expenses by Operator acting alone and shall ensure that, subject to Section 4.3 hereof, sufficient funds or line of credit are available to pay for the Pre-Opening Expenses, including reimbursement to Operator for any Pre-Opening Expenses paid by Operator. The terms of the bank account or line of credit and any amendments thereto will be in form and substance approved by Owner and Operator and will expressly provide that during the period in which Pre-Opening Services are being provided, no instruction by Owner terminating, diminishing or otherwise materially and adversely affecting Operator’s right to draw funds will be effective without Operator’s prior written approval. Subject to Section 4.3 hereof, Operator will be entitled any time or from time to time to draw cash from the bank account or under the line of credit in any amount required to pay the Pre-Opening Expenses in accordance with this Agreement. In addition, Pre-Opening Expenses incurred or paid by Operator shall be promptly reimbursed to Operator from such account or line of credit, and Operator shall provide a statement of account to Owner for such Pre-Opening Expenses reimbursed to Operator. If following the Opening Date, there are outstanding Pre-Opening Expenses which have not been paid, Operator shall be entitled to withdraw such amounts (plus interest thereon if such Pre-Opening Expenses were paid by Operator) from the Operating Account for the Condo-Hotel.

4.5 Monthly Statements. Operator shall submit to Owner a monthly statement during the period of the Pre-Opening Services until the Opening Date, which report shall include a statement of all Pre-Opening Expenses incurred by Operator during the prior calendar month. Operator shall provide a final accounting and statement to Owner for the Pre-Opening Expenses incurred for the Condo-Hotel and any other outstanding amounts that are owed to Operator and its Affiliates within one hundred twenty (120) days after the Opening Date.

ARTICLE 5

CONDOMINIUM DOCUMENTS; HOTEL RELATED SERVICES; RENTAL PROGRAM

5.1 Condominium Documents.

5.1.1 Owner, in its capacity as the current owner of the Condo-Hotel, shall execute and record the Condominium Documents, including such documents binding on future owners and operators of the various components of the Condo-Hotel, as may be necessary to ensure that such owners and operators of the Condo-Hotel (and any components thereto) are similarly obligated to construct, operate and maintain the portions of the Condo-Hotel owned or controlled by each such person to a standard consistent with this Agreement and in a manner that shall enable and not interfere with the operation of the Condo-Hotel as contemplated by this Agreement.

5.1.2 Operator has received, reviewed and approved the current draft of the Condominium Documents and will have the continuing right to further approve any modifications thereto over which Owner has control (through exercise of voting rights or otherwise) and Owner shall not amend or modify any of the same in a manner that would materially and adversely affect Operator’s rights or obligations under this Agreement (provided, however, if the amendment or modification is necessary to comply with Legal Requirements, the Parties shall cooperate in good faith to address and resolve the issue). In the event that the Condominium Documents are amended and/or modified, Owner shall provide Operator with copies of such Condominium Documents promptly upon their execution or finalization, as may be applicable.

5.1.3 Owner shall take (and not fail to take) any action or exercise (and not fail to exercise) such rights under the Condominium Documents (through exercise of voting rights, enforcement of remedies or otherwise, subject to any constraints imposed under Legal Requirements) as may be necessary or desirable in order (a) to ensure that each component of the Condo-Hotel over which Owner has control is constructed, maintained and operated in accordance with this Agreement, and (b) to effectuate the terms of this Agreement and the other agreements and documents referred to in this ARTICLE 5; provided, however, in the event Owner’s action or inaction would (i) violate applicable Legal Requirements or the Condominium Documents, or (ii) otherwise subject Owner to legal liability, the parties shall cooperate in good faith to address and resolve the issue.

5.1.4 The Parties shall negotiate in a good faith and timely manner any other agreements reasonably required in connection with the condominium structure agreed upon between the parties for the Condo-Hotel.

5.2 Condo-Hotel Services for the Residential Units.

5.2.1 Hotel Related Services, Transient Services and Other Services.

(a) Operator shall have the exclusive right to provide to the Residential Units the Hotel Related Services in accordance with the Condominium Documents.

Operator shall further have the right to determine the Hotel Related Services in its commercially reasonable discretion.

(b) Operator shall provide Residential Units that are rented to third parties (whether by a Rental Program Agreement or otherwise) with Transient Services. The exact nature and extent of the Transient Services to be provided to any category of Residential Units shall be subject to the Declaration and the agreement between Owner and Operator of the services to be performed in accordance therewith.

(c) In addition, Operator shall be obligated to (i) comply with and fulfill the terms and conditions of the Condominium Documents and (ii) provide appropriate staffing to the Condo-Hotel using good business judgment and in accordance with the standard of care as set forth in Section 3.3.

5.2.2 Furthermore, it is possible that the Unit Owners (or if there is more than one category of Unit Owners, particular categories of Unit Owners) will have the option to pay for and receive various “A la Carte Services” (provided that some A la Carte Services may be mandatory under the Rental Program) such as: (a) housekeeping services, (b) laundry services and dry cleaning services, (c) personal services (such as massage and personal training), (d) food and beverage services (such as room service and catering), (e) coordination of private air and land transportation, off-site restaurant reservations, florist services, tours, babysitters, car rentals and flight changes; (f) mail, newspaper and similar deliveries; (g) storage; and/or (h) other services to the extent deemed appropriate by Operator from time to time. The scope of the A la Carte Services, if any, to be provided to any category of Unit Owners shall be subject to the agreement of Operator and Owner, all in accordance with the standard of care as set forth in Section 3.3. The charges for the A la Carte Services shall be established by Operator as it reasonably determines from time to time and billed directly to the Unit Owners on a usage basis and paid to Operator on behalf of the Condo-Hotel, which usage charges may include a profit component to Operator. Operator and Owner shall have the right to condition the provision of any A la Carte Services to the Unit Owners upon the execution by such Unit Owner of a separate A la Carte Services agreement with Operator whereby, among other things, such Unit Owner agrees to pay directly to Operator the charges for all A la Carte Services requested by such Unit Owner or any of its designated guests or occupants. Operator shall prepare a budget annually for the estimated costs of the A la Carte Services, if any, and include such budget within the Project Budget, if applicable.

5.2.3 Either Party may withhold its approval of the Rental Program and/or the Rental Program Agreement, to the extent the proposed terms and conditions of the Rental Program and/or the Rental Program Agreement deviate from or conflict with the following:

(a) the Rental Program shall comply with all Legal Requirements;

(b) participation in the Rental Program shall be optional;

(c) Unit Owners may use any rental agent to rent their Residential Units and may also personally rent their Residential Units; and

(d) at no time shall any gross rooms revenues attributable to the applicable Participating Unit be “pooled” with the other Participating Units participating in the Rental Program.

5.3 Rental Program.

5.3.1 Operator shall, subject to Legal Requirements, prepare and determine the terms and conditions of the rental program pursuant to which all Unit Owners may rent their Residential Units in accordance with the Rental Program Agreement (the “Rental Program”); provided, however, that (i) Operator shall act reasonably and exercise prudent business judgment in preparing the Rental Program, all in accordance with the standard of care as set forth in Section 3.3; (ii) the Rental Program must (a) be for a term equal to or less than five (5) years, (b) be prepared in good faith in such a manner so as to optimize Gross Revenue and the rental split thereof, and (c) comply with the terms of Section 5.2.3(a)-5.2.3(d); and (iii) DW Member shall have the right to review the proposed Rental Program and shall advise Operator in writing of any objections to the Rental Program within ten (10) Business Days after Operator provides DW Member with such proposed Rental Program. Operator agrees to meet with DW Member, if requested by DW Member, during such ten (10) Business Day period to review and discuss the proposed Rental Program. Within ten (10) days after receiving DW Member’s written objection(s) to the proposed Rental Program, DW Member and Operator shall meet at the Condo-Hotel (or such other location as they may mutually agree) and endeavor in good faith to resolve such objections and arrive at an approved Rental Program. If they are unable to do so within ten (10) days after Operator receives DW Member’s written objection(s), Operator shall have the right to proceed forward and implement such proposed Rental Program, so long as it does not violate any terms regarding the Rental Program as set forth in this Agreement (specifically in this Section 5.2.3) and/or the Condominium Documents. Operator shall have the right to amend and/or modify the Rental Program in its sole but reasonable discretion; provided, however, that such revised Rental Program complies with the aforementioned provisions as set forth in this Section 5.3.1; and provided further, however, that Owner shall have the right to review and approve of such revised Rental Program, in its sole but reasonable discretion, to the extent that any such modifications are deemed to be material, but in no event shall Owner’s right to review and approve in this clause be greater than its right to review and approve the initial Rental Program as set forth above in this Section 5.3.1.

5.3.2 Pursuant to the terms of the Rental Program Agreement, Operator shall be obligated to perform all duties of Owner under the Rental Program Agreement.

5.3.3 Neither Owner nor Operator shall, under any circumstances, permit any Unit Owner to participate in the Rental Program, unless such Unit Owner has entered into a Rental Program Agreement.

5.3.4 The rental operation and interior maintenance of each Participating Unit shall be governed by the Rental Program Agreement.

5.4 Management of Condominium. Owner, or an Affiliate of Owner, may cause the Condominium Association to enter into a management agreement with an unaffiliated third-party

manager (the “Association Management Agreement”) for the management of the governance and administrative matters of the Condominium Association.

5.5 Operator Covenants and Acknowledgments.

Operator hereby acknowledges and agrees as follows:

5.5.1 Owner cannot guarantee the participation of Residential Units in the Rental Program and, therefore, cannot guarantee to Operator a minimum level of transient occupancy at the Condo-Hotel at any given time. Accordingly, Operator covenants that, subject to the standard of care as set forth in Section 3.3 and at all times during the Term, it shall use commercially reasonable efforts to effectively manage the “fixed costs” associated with the operation of the Condo-Hotel (which comprise a portion of the Operating Expenses) in a manner so as to minimize any negative EBITDAM and, correspondingly, optimize EBITDAM; provided, however, that Operator shall not take any action that, in Operator’s reasonable judgment, would materially adversely affect its ability to operate the Condo-Hotel in accordance with this Agreement, including maintaining the Condo-Hotel in accordance with the Operating Standard (subject to any limitations set forth herein).

5.5.2 Owner shall be obligated to fund Operating Expenses and otherwise provide Working Capital or other funds necessary for Operator to perform its obligations hereunder in accordance with the Project Budget and the terms and conditions herein. Owner shall not be required to fund any capital contributions or other amounts in connection therewith, unless such contributions are contemplated by the Project Budget and the Condominium Documents and have been approved by the appropriate parties.

5.6 Operator Rental Program Rights and Obligations. In addition to the terms and conditions of the Rental Program Agreement, Owner and Operator acknowledge and agree that Operator shall have the following rights and obligations in connection with the Rental Program:

5.6.1 Operator shall be responsible for the creation of a fair and equitable system of assignment with respect to the Participating Units, taking into account guest requests and preferences;

5.6.2 Operator shall require that the owners of the Residential Units (and all occupants of a Residential Unit), regardless of whether such Residential Units are Participating Units, check in and out with at the front desk of the Condo-Hotel (or such separate front desk as may be established solely for the Unit Owners).

ARTICLE 6

PAYMENT OF FEES

6.1 Operating Fee. For each Operating Year, Operator shall be paid, in respect of its management services provided to the Condo-Hotel, a total annual fee (the “Operating Fee”) in the form of (i) a base fee in an amount equal to two percent (2.0%) of the Gross Revenue derived solely from the Condo-Hotel (the “Base Management Fee”) and (ii) an incentive fee (the “Incentive Management Fee”) in an amount equal to five percent (5.0%) of the EBITDAM of the

Condo-Hotel. In the event that the Condo-Hotel shall have negative EBITDAM during any Operating Year, then such calculated negative amounts shall be deducted from the calculation of EBITDAM (as defined in the Hotel and Casino Management Agreement) for the Resort Hotel and Casino in calculating the Incentive Management Fee (as defined in the Hotel and Casino Management Agreement) for the Resort Hotel and Casino.

6.2 Time and Manner of Payment. The Operating Fee shall commence to accrue upon the Opening Date. The Base Management Fee shall be payable in monthly installments calculated on the Gross Revenue derived from the Condo-Hotel for such prior Accounting Month. The Incentive Management Fee shall be payable in quarterly installment payments derived from the Condo-Hotel EBITDAM calculation for the relevant Quarterly Period. The Base Management Fee and the Incentive Management Fee due and Owing to Operator shall be paid by Operator by withdrawing the same from the Operating Account for the Condo-Hotel at any time following delivery to Owner of the Monthly Statements for the relevant Accounting Month and the Quarterly Statements for the relevant Quarterly Period.

6.3 Payment of Expenses. Subject to the terms of this Agreement, including without limitation, ARTICLE 12, in addition to the Base Management Fee and Incentive Management Fee, Operator shall be entitled to pay from the appropriate Operating Account or reimburse itself all actual and reasonable Operating Expenses directly incurred by Operator in the operation of the Condo-Hotel, including, without limitation, all actual costs and expenses incurred in maintaining on-site structures and offices used in, and all Compensation in connection with, the management and operation of the Condo-Hotel (the “Reimbursable Expenses”); provided, however, in no event shall the Reimbursable Expenses be subject to any ▇▇▇▇-up or profit. Notwithstanding the foregoing, and other than with respect to Reimbursable Expenses payable to Operator pursuant to the first sentence of this Section 6.3, the Parties acknowledge and agree that Reimbursable Expenses shall not include, and neither the CityCenter Project nor Owner shall be allocated, and neither MGM MIRAGE nor any Affiliate thereof shall be paid or reimbursed by Owner or Operator for, (x) any corporate overhead, administrative costs, or other corporate allocations of any kind incurred by MGM MIRAGE or any Affiliate thereof, (y) any rent, utilities or other similar overhead of any kind incurred by MGM MIRAGE or any Affiliate thereof, or (z) any personnel costs of any kind incurred by MGM MIRAGE or any Affiliate thereof, or other similar amounts incurred by MGM MIRAGE or its Affiliates thereof including, but not limited to, any costs or expense incurred by MGM MIRAGE or its Affiliates thereof (i) in the operation of MGM MIRAGE or any Affiliate thereof, (ii) in the maintenance of the corporate offices of MGM MIRAGE at the Bellagio Hotel & Casino or otherwise, or (iii) in the provision of the Centralized Services by MGM MIRAGE or any Affiliate thereof (except for any such services otherwise provided by third parties or under the Development Management Agreement).

6.4 Quarterly and Annual Reconciliations. If, during any Operating Year, the amount of the installments of the Operating Fee paid to Operator shall be less than or more than the actual Operating Fee payable during (x) any Quarterly Period of such Operating Year, or (y) at the close of such Operating Year based upon the final determination of Gross Revenue and EBITDAM for such year as set forth in the Annual Statements, then, within fifteen (15) days after the delivery of each such Quarterly Statements or Annual Statements to Owner, Operator shall withdraw from the appropriate Operating Account for the Condo-Hotel the net amount of

any such underpayment or, if overpaid, pay into the Operating Account established for the Condo-Hotel, the net amount of the overpayment.

6.5 Interest. Any and all amounts that may become due and owing to either Party under this Agreement that are not paid, with respect to Reimbursable Expenses, when due, or, with respect to other payables, within ten (10) days of the respective due dates shall bear interest from and after the respective due dates thereof until the date on which the amount is received in the bank account designated by Operator, at an annual rate of interest equal to the lesser of (i) the weighted average of the annual interest rates for all outstanding indebtedness of MGM MIRAGE under its indentures and credit agreements plus two hundred (200) basis points and (ii) the highest rate permitted by Legal Requirements; provided, however, the foregoing shall not apply if the delinquency shall have occurred solely due to the fault of the Party that is to receive such payment; provided, further, that no interest shall be payable on amounts owed by Owner to Operator to the extent Operator is authorized to directly pay such amounts to themselves under this Agreement (unless there are insufficient funds in the Operating Account therefor).

ARTICLE 7

OWNER’S OBLIGATIONS

7.1 General Obligations. During the Term, Owner shall have the obligations set forth below:

7.1.1 Licenses and Permits. Owner, with the cooperation of Operator, shall obtain and maintain all governmental permissions, licenses and permits required to be held in Owner’s name (or at the request of Owner, the name of an individual on its behalf or a combination thereof) that are necessary to enable Operator to operate the Condo-Hotel in accordance with the terms of this Agreement, and each Party shall cooperate diligently with the efforts of the other to obtain and maintain such permits and licenses. Such licenses and permits shall, to the extent applicable, include, but not be limited to, business licenses, event and entertainment operation licenses, and alcoholic beverage licenses permitting the Condo-Hotel to sell and serve alcohol to guests.

7.1.2 Operating Funds and Capital Funds. The performance by Operator of its responsibilities under this Agreement is conditioned upon Owner providing sufficient funds to Operator on a timely basis to enable Operator to perform its obligations hereunder. Owner shall provide all funds necessary to (a) enable Operator to manage and operate the Condo-Hotel in accordance with the terms of this Agreement and the applicable Project Budget, (b) maintain the Condo-Hotel in accordance with the Operating Standards, and (c) comply with all Legal Requirements. Owner and Operator shall cooperate fully with each other in establishing appropriate procedures and timetables for Owner to undertake capital replacement and/or improvement projects, all of which shall be managed by Operator at no additional fee to the Owner. If the Operating Account for the Condo-Hotel are insufficient to fund Operator for the Reimbursable Expenses or the Operating Fees due and owing to Operator, Owner shall be obligated to fund the Operating Account to pay such Reimbursable Expenses and the Operating Fees within fifteen (15) days following Owner’s receipt of a written notice from Operator requesting such funds subject however, to the agreed limitation of liability set forth in Section 21.24 with respect to the Condo-Hotel. In no event shall Operator be required or obligated to

advance any of its funds to, or for the operation of, the Condo-Hotel, nor shall Operator be required to incur any liability in connection therewith, unless Owner shall have furnished Operator with funds necessary for the discharge thereof.

7.1.3 Payments to Operator. Owner shall pay to Operator all amounts due to Operator under this Agreement in the manner and at the times described in this Agreement.

7.1.4 Environmental Matters. Operator shall use commercially reasonable efforts to operate and maintain the Condo-Hotel in compliance with all Environmental Laws. However, if any Hazardous Material is discovered at any time on any portion of the Condo-Hotel in violation of or as would reasonably be expected to result in liability under any Environmental Law, or if any Environmental Law is violated at any time, Owner at its expense shall promptly remove, remediate or ▇▇▇▇▇ such Hazardous Material (and all contaminated soil and containers), take all other necessary steps to remedy the problem in accordance with all Environmental Laws and comply with all Environmental Laws. Owner, with respect to any Hazardous Materials or the violation of any Environmental Law occurring on or after the Effective Date shall also indemnify, defend and hold harmless Operator in accordance with the provisions of Section 19.2.

7.1.5 DW Representative. DW Member shall have the right to appoint a representative for the CityCenter Project (the “DW Representative”), the identity of whom shall be subject to the reasonable approval of Operator (not to be unreasonably withheld, conditioned or delayed). The DW Representative shall have the right to communicate with Operator on a daily basis, shall receive a copy of all written notices and reports as and when provided to Owner, to Operator and to executive officers of MGM MIRAGE, may attend monthly, quarterly and other material meetings with Operator relating to the operation of the Condo-Hotel or any material part thereof and shall have such other rights as customarily afforded asset managers of institutional real estate. DW Member may replace (subject to the reasonable approval of Operator) or dismiss the DW Representative at any time by giving written notice of such replacement or dismissal to Operator and Owner specifying a replacement DW Representative. DW Representative shall be restricted, to the same extent that DW Member or Owner would be restricted, from disclosing any information pertaining to the Condo-Hotel (or any component thereof) or MGM MIRAGE or its Affiliates, and DW Member shall cause the DW Representative to abide by such restriction. In addition, DW Member shall use good faith efforts to request that the DW Representative take no action that may materially interfere with, or interrupt, the operation or management of the Condo-Hotel by Operator. Operator shall provide office space to the DW Representative located at the Project and suitable to ease of administration and function in the exercise of the DW Representative’s duties.

7.1.6 Contesting Legal Requirements. Owner shall have the right to contest the validity and enforcement of any Legal Requirement (with the exclusion of business licenses, Gaming licenses, event and entertainment operation licenses, and alcoholic beverage licenses permitting the relevant portions of the Condo-Hotel to sell and serve alcohol to guests or other privileged licenses and permits of Owner, MGM MIRAGE or their respective Affiliates) concerning the Condo-Hotel, provided that (i) Owner believes, based on a good faith determination of counsel reflected in written advice from counsel (a copy of which is provided to Operator), that Owner need not comply with such Legal Requirement (or that such Legal Requirement is not applicable to the Condo-Hotel), (ii) Owner agrees in writing to indemnify,

defend and hold harmless Operator with respect to all costs, expenses, fines, damages or liability (including reasonable attorneys’ fees) that Operator may suffer as a result of Owner’s failure or refusal to comply with such Legal Requirement, (iii) Owner’s failure or refusal to comply with such Legal Requirement will not expose Operator to criminal liability or materially impair Operator’s ability to carry out its business, whether at the Condo-Hotel or elsewhere, and (iv) if compliance with such Legal Requirement has not been required by judicial or administrative order or a specific directive from a governmental authority, then Owner shall not be required to comply with such Legal Requirement for such time as Owner is diligently and continuously pursuing a good faith contest of such Legal Requirement.

7.1.7 Release of Obligation. At any time, Operator may, if it reasonably deems it to be necessary or appropriate, request written instructions from Owner within a reasonable period prior to the necessity for taking action with respect to any matter contemplated by this Agreement where the approval of Owner is required, or in those instances where Operator is cognizant of the fact that the approval of the Members of the Joint Venture is required under the Joint Venture Agreement, then Operator, as required, may defer action thereon pending receipt of such written instructions. Owner shall promptly respond to any such request for written instructions. Actions taken by Operator, its officers, employees and/or representatives in accordance with the written instructions of Owner, or failures to act by such persons pending the receipt of such written instructions, shall be deemed to be proper conduct within the scope of Operator’s authority under this Agreement.

ARTICLE 8

PERSONNEL

8.1 Hiring of Personnel. Operator shall provide all Personnel and shall have full control and authority over such Personnel. Operator shall use reasonable procedures and standards in the selection of each person employed at the Condo-Hotel to whom the foregoing duties or any of them shall be delegated. All Personnel shall be employees of Operator. Operator shall abide by all Legal requirements applicable to Personnel and shall use reasonable efforts to cause the Personnel to abide by Legal Requirements. Subject to the terms and conditions of this Agreement and the Project Budget, Operator shall have the exclusive right to: (i) establish and modify from time to time any and all Compensation, including all plans related thereto; and (ii) determine all matters with regard to such Personnel and laborers, including, without limitation, replacement of such Personnel and laborers. For the avoidance of doubt, Owner shall not have the right to, under any circumstances, direct or otherwise exert any authority or control over any Personnel or approve the hiring or dismissal of any Personnel, and all decisions relating to the employment of such Personnel, including (without limitation) the transfer and dismissal of such Personnel, shall be made by Operator.

8.2 Compensation of Personnel. The Compensation of Personnel and Other Personnel shall be an Operating Expense of the Condo-Hotel, shall be the responsibility of Owner, and may be paid for by Operator from the Operating Account. Subject to the terms of this Agreement, if the Operating Account is insufficient to reimburse such Compensation, Owner shall be obligated to fund the aggregate Compensation with respect to each payroll period. The Compensation shall not include any form of corporate or other overhead or general and administrative allocation on behalf of any Personnel. During any Operating Year, pursuant to

this Agreement and in connection with all Project Agreements, it being understood that this limitation applies to the entire CityCenter Project„ Operator shall have not the right to designate (i) more than fifty (50) individuals as Other Personnel; or (ii) more than Twenty Million Dollars ($20,000,000) in base salary for Other Personnel in any Operating Year, in each case without obtaining Owner’s prior written approval. The Other Personnel shall be held to the same standard of responsibility and duty of care with respect to the Operating Standard as all Personnel. Operator under this Agreement, and the “Managers” under the Crystals Retail Management Agreement and the “Managers” under the Resort Hotel and Casino Management Agreement shall further ensure that designation of Other Personnel shall not cause any undue delay in the performance of such Other Personnel’s performance of their duties, increased cost or expense or other prejudice to the operation of the Condo-Hotel. Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that Compensation paid to the Operator shall be an Operating Expense of the Condo-Hotel. For the avoidance of doubt, the aforementioned concept in this Section 8.2 shall be cumulative across the Project Agreements.

8.3 Personnel Information. To the extent not otherwise prohibited by Legal Requirements, upon request of Owner from time to time, Operator shall make available for inspection by Owner, (i) copies of all employee policies and procedures, including, without limitation, copies of employee manuals and handbooks in effect at the Condo-Hotel; and (ii) employee job classifications, number of employees in each job classification, job descriptions (if applicable), pay scales and benefits provided to each job classification.

8.4 Unions. Operator or its Affiliate shall have the authority to negotiate with any labor unions which are certified as or otherwise recognized as exclusive bargaining representatives of the Personnel; provided, however, Operator acknowledges and agrees that, in addition to whatever additional rights that DW Member may have under the Joint Venture Agreement, Operator shall (i) keep DW Member reasonably informed of all material discussions and negotiations with labor unions and their representatives, (ii) promptly deliver copies of all drafts of agreements and other material written communications therewith, (iii) from time to time meet with DW Member during such negotiations and discussions and in good faith take into account DW Member’s issues and concerns with respect thereto, and (iv) provide DW Member copies of all agreements as early as possible prior to their execution if it is possible to do so without jeopardizing the objective of the negotiations. In addition to the foregoing, Operator shall use and be subject to the standard of care set forth in Section 3.3 in its negotiation and execution of all agreements with all labor unions and other collective bargaining agreements (which standard of care shall include, but shall no be limited to, negotiating and executing agreements for the CityCenter Project that treat employees of Operator in a manner generally consistent with the treatment of employees of other similarly sized and class Operator Group Hotels in Las Vegas, Nevada). Finally, Operator shall notify Owner promptly of any material defaults under collective bargaining agreements, proceedings involving material union disputes and other similar proceedings and otherwise provide DW Member the same level of information and protection provided to DW Member in the negotiation of new agreements as provided in the proviso of the first sentence of this Section 8.4.

ARTICLE 9

PROJECT BUDGET

9.1 Submission and Approval of Project Budget.

9.1.1 Preparation of Proposed Project Budget. Prior to the beginning of each Operating Year, Operator shall submit the Project Budget for the Condo-Hotel to Owner for its review and written approval (subject to DW Member’s rights pursuant to the Joint Venture Agreement). Operator shall act reasonably and exercise prudent business judgment in preparing each proposed Project Budget. Each proposed Project Budget shall include sufficient details with respect to an estimate of costs and expenses, revenue and profit, and a marketing budget, as may be requested or required by the Board of Directors, including, but not limited to, revenue and expense projections showing (by Residential Unit type) projected occupancy for Participating Units (and an estimate of proposed room rates for Participating Units) and cash distributions to Owner and all Unit Owners of Participating Units. In addition to the foregoing, each Project Budget shall provide a forecast of capital expenditures anticipated for the Condo-Hotel during the one year subsequent to the subject Operating Year for informational purposes only, so that Owner can reasonably anticipate the subsequent year’s potential expenditure, but Operator shall be bound to the Project Budget for any given Operating Year only.

9.1.2 Approval by Owner. Subject to and consistent with the protocols for the timing, review and completion of the Project Budget as mandated by the Joint Venture Agreement, Owner shall have the right to review and approve or disapprove of the proposed Project Budget and shall advise Operator in writing of any objections to the Project Budget as required by and consistent with the Joint Venture Agreement.

9.1.3 Resolution of Owner Objections Regarding Budget. At any time prior to the day which is sixty (60) days prior to the beginning of each Operating Year, if Owner and Operator have not resolved any objections to the Project Budget as set forth in Section 9.1.2, then any such dispute shall be governed by, and resolved in accordance with, the Joint Venture Agreement.

9.1.4 Interim Period. If the Project Budget has not been entirely approved by the beginning of the Operating Year to which it pertains, then pending such approval, the following items shall be addressed as follows:

(a) insurance, taxes, common charges, utilities, debt service, labor expenses and required capital expenditures (necessary to comply with any Legal Requirements or existing contractual obligations) shall each be adjusted to actual amounts,

(b) all capital and non-recurring items (other than the aforesaid required expenditures) for the current calendar year in such Project Budget shall remain the same as in the expiring Project Budget, and

(c) all other expense line items shall be adjusted by an amount equal to the CPI Annual Percentage Increase (as hereinafter defined) as of the date of the expiring Project Budget. The line items in the Project Budget have been approved by Owner shall replace the applicable line items in the prior Project Budget. The “CPI Annual Percentage Increase”

computed as of a particular calendar month shall be equal to the percentage difference between the CPI for such calendar month and the CPI for the calendar month which is twelve (12) months prior to such calendar month. With respect to the Project Budget, Operator shall operate the Condo-Hotel in accordance with the items or portions of the Project Budget which have not been objected to by Owner and, with respect to the items or portions of the Project Budget which have been objected to by Owner, Operator shall operate the Condo-Hotel in accordance with the previous Operating Year’s Project Budget, with suitable adjustments of rates and expenses as dictated by increases in the CPI and other expenses outside the control of the Condo-Hotel (e.g. utilities, taxes and insurance) adjusted to actual amounts.

9.1.5 Compliance with Project Budget. Operator shall use all reasonable efforts to act in accordance with the Project Budget (as modified by any subsequent changes agreed between Owner and Operator) for the corresponding Operating Year. However, it is understood that each Project Budget is an estimate only and that inflation, currency fluctuation, general market conditions, changes in business plans and strategies and unforeseen circumstances may make adherence to the Project Budget impracticable, and Operator shall be entitled to depart from it due to any such circumstances. Operator shall promptly notify and consult with Owner regarding any substantial change from the Project Budget, and to make any necessary adjustments to the Project Budget as Owner and Operator shall agree in light of unforeseen circumstances. Furthermore, Owner acknowledges and agrees as follows:

(a) With respect to the Condo-Hotel, certain expenses provided for in the Project Budget for any Operating Year will vary based on the occupancy and use of the Condo Hotel and, accordingly, to the extent that occupancy and use of the Condo-Hotel for any Operating Year exceeds the occupancy and use projected in the approved Project Budget for such Operating Year, such approved Project Budget shall be deemed to include corresponding increases in such variable expenses; provided, however, Operator shall use commercially reasonable efforts to minimize Operating Expenses to the extent that occupancy and use of the Condo-Hotel for any Operating Year is less than the occupancy and use projected in the approved Project Budget for such Operating Year;

(b) To the extent allowed under the Condominium Documents, Operator shall have the right to pay from the Operating Account all Uncontrollable Expenses; provided, however, Operator hereby covenants and agrees to use commercially reasonable efforts throughout the Term to manage, whenever reasonably possible, the Uncontrollable Expenses related to the Condo-Hotel and the operation thereof (including, by way of example, contesting, when reasonable appropriate, the amount and/or imposition of taxes);

(c) If any expenditures are required on an emergency basis to avoid damage to the Condo-Hotel and/or injury to persons or property, Operator may make such expenditures; provided, however, in connection with any expenditure required on an emergency basis that was not specifically contemplated in the Project Budget, Operator shall (i) use commercially reasonable efforts to notify Owner prior to the time that the expenditures in question are made and shall in any event notify Owner as soon as reasonably possible after such expenditures are made, (ii) use commercially reasonable efforts to minimize the expenditures made without Owner’s approval, and (iii) to the extent possible, cooperate with Owner to develop a strategy for responding to the emergency in a reasonable and prudent, but cost-

efficient manner (i.e. in a manner that will minimize to the extent reasonably possible the expenses to Owner in responding to the subject emergency); and

(d) If any expenditures are required to comply with any Legal Requirement or to cure or prevent any violation thereof, Operator may make such expenditures.

ARTICLE 10

FUNDS AND ACCOUNTS; MAINTENANCE

10.1 Minimum Working Capital Amount. Owner shall commit the financial and other resources necessary to permit the Condo-Hotel to be operated and maintained in accordance with the Operating Standard. In furtherance of the foregoing, Owner shall make available, prior to the Opening Date, initial Working Capital in accordance with the Project Budget as approved by Owner and in accordance with the Condominium Documents. Owner shall thereafter throughout the Term maintain Working Capital in accordance with the Project Budget in accordance with the Joint Venture Agreement and the Condominium Documents. Operator shall be entitled to retain Working Capital in the Operating Account.

10.2 Reserve Fund Contribution.

10.2.1 Replacement Reserve. During each Operating Year, Operator shall, for each Accounting Month included in such Operating Year, pay into a reserve fund (the “Shared Components Reserve Fund”) a portion of the Common Expenses collected by Operator sufficient to facilitate the repair, replacement, improvement and maintenance of the Shared Components, in accordance with the Condominium Documents and the Project Budgets (the “Replacement Reserve Amount”). At the end of each Operating Year, any amounts remaining in the Shared Components Reserve Fund shall be carried forward to the next Operating Year pursuant to the Project Budget.

10.2.2 Use. Withdrawals from the Shared Components Reserve Fund shall only be used for the repair, replacement, improvement and maintenance of the Shared Components in accordance with the Condominium Documents and the Project Budgets, or as otherwise approved by Owner in its sole and absolute discretion. Any withdrawals from the Shared Components Reserve Fund shall only require (or be permitted upon) the signature of Operator. Any Improvements made to the Shared Components or Equipment so replaced or added and paid for by Owner or from such Shared Components Reserve Fund shall be and become, forthwith upon acquisition and installation, and without further act or action, the property of Owner. Any funds remaining in the Shared Components Reserve Fund at the expiration or earlier termination of this Agreement shall remain the property of Owner.

10.2.3 Estimates and Additional Contributions. If the aggregate amount for the repair, replacement, improvement and maintenance of the Shared Components exceeds the available funds in the Shared Components Reserve Fund or if sufficient funds are not available in the Shared Components Reserve Fund to sufficiently provide for the repair, replacement, improvement and maintenance of the Shared Components in accordance with the Condominium Documents and the Project Budgets, then, in accordance with Section 9 of the Declaration,

additional amounts shall collected by Operator to sufficiently replenish the Shared Components Reserve Fund.

10.3 Establishment of Shared Components Reserve Fund. The Shared Components Reserve Fund shall be established at a bank or other financial institution designated by Owner and approved by Operator (such approval not to be unreasonably withheld, conditioned or delayed) and shall be established in the name of Owner. Interest or other income earned during any period on the amounts in such Shared Components Reserve Fund shall be excluded from Gross Revenue, remain part of such Shared Components Reserve Fund and be credited against the Replacement Reserve Amount to be contributed for such Accounting Month. To the extent that Operator shall be required to pay income taxes on such interest or other income as a fiduciary, the same shall be payable out of such Shared Components Reserve Fund.

10.4 Repairs and Maintenance. Operator shall repair and maintain the Hotel Unit and as applicable, the Residential Units, in accordance with the Condominium Documents and the Rental Program Agreement. Notwithstanding anything in this Agreement (including, without limitation, Section 10.5) and/or the Condominium Documents to the contrary, other than Routine Capital Improvements and Capital Improvements specifically approved in the Project Budget for each Operating Year, Owner shall not be obligated to fund any additional Routine Capital Improvements and Capital Improvements not approved in the Project Budget, unless such Routine Capital Improvements and Capital Improvements are approved by Owner in writing in its sole and absolute discretion and shall be credited towards the Replacement Reserve Amount required for such Operating Year.

10.5 Emergency Repairs. If Operator shall, at any time, reasonably believe that (i) a dangerous condition exists at the Condo-Hotel, (ii) repairs are required to comply with any applicable Legal Requirements or Insurance Requirements, or (iii) expenditures are required to eliminate a dangerous condition or to prevent further property damage arising out of a Casualty or other emergency, Operator may take all steps and make, on behalf of Owner utilizing the funds as described below in this Section 10.5, all reasonable expenditures necessary to cure such condition or make such repairs, or which are otherwise so required, whether or not provided for in the Project Budget, but in accordance with the Condominium Documents. In the event of the circumstances described in clauses (i), (ii) and (iii) immediately above, Operator shall have the right, power and authority to use (a) first, all or part of the Shared Components Reserve Fund, and (b) second, the monies in the Operating Account, for the making of such repairs. Owner shall, within ten (10) days after written notice from Operator, provide Operator with all funds necessary pursuant to this Section 10.5 if adequate funds are not otherwise available from the Shared Components Reserve Fund and the Operating Account.

10.6 Enforcement of Guaranties and Warranties. On or about the Opening Date, Owner shall furnish or cause to be furnished to Operator copies of any guaranties and warranties relating to the Condo-Hotel and a summary of the expiration dates of such guaranties and warranties. If any repairs or Routine Capital Improvements and Capital Improvements shall be made necessary by any condition against the occurrence of which the builder of any renovation or construction or any supplier of labor or materials for the Condo-Hotel or any other party has provided a guaranty or warranty, then Operator shall use all commercially reasonable efforts to

enforce such guaranty or warranty, and Owner will reasonably cooperate with Operator in such efforts.

10.7 Impositions and Insurance Premiums. Subject to the terms of this Agreement, Operator shall, prior to delinquency, and as long as the Condo-Hotel has been supplied with bills and invoices, pay from the Operating Account, to the extent of funds available therein (and Owner shall timely provide such funds to the extent they are not available from Operating Account), all Impositions assessed against the Condo-Hotel, and all insurance premiums on all policies of insurance maintained with respect to the Condo-Hotel and its operations.

10.8 Operating Account. Operator shall establish an Operating Account for the Condo-Hotel at a bank or other financial institution designated by Owner and approved by Operator (such approval not to be unreasonably withheld, conditioned or delayed). The Operating Account shall be established in the name of Owner. Operator shall deposit into the Operating Account all moneys advanced as Working Capital by Owner, and all moneys received by Operator from the operations of the Condo-Hotel shall be promptly counted no less frequently than required by applicable MGM MIRAGE corporate policies and in compliance with applicable Legal Requirements. The Parties hereto agree to obtain a bonded transportation service to effect the safe transportation of the daily receipts to the bank, if such service is available at reasonable cost and if not provided by the bank, which expense shall constitute an Operating Expense. The Operating Account shall serve as the general account for the Condo-Hotel. Operator and Owner shall be authorized signatories on such Operating Account; provided, however, Operator shall be responsible for making all payments due and owing out of such Operating Account, on behalf of Owner, to the extent sufficient funds are available from time to time therein, including, without limitation, payment of all Operating Expenses, the Compensation, the Operating Fee and any other amounts due and owing to Operator or its Affiliates under the express terms of this Agreement. Owner shall be provided with internet access to each and all Operating Account permitting Owner to examine balances and activity in the Operating Account. Operator shall establish controls to ensure accurate reporting, safety and security of all transactions involving the corresponding Operating Account.

10.9 Control and Ownership of Accounts. The policies and procedures for authorization of Personnel to withdraw from the Operating Account or the Reserve Fund shall be approved by the Board of Directors in accordance with the Joint Venture Agreement. In addition to such Operating Account and Shared Components Reserve Fund, Operator shall be entitled to maintain House Accounts as Operator deems reasonably necessary in the operation of the Condo-Hotel. All of the funds in the House Accounts shall belong to Owner and Operator shall not commingle its own, or any third party’s funds, in the Operating Account. Owner retains the right at all times to withdraw funds from the Operating Account.

10.10 Pledge of Credit. Operator shall not (i) pledge the credit of Owner nor borrow funds in its name; provided, however, that this restriction will not prohibit Operator from accessing any line of credit obtained by Owner in accordance with the policies and procedures for draws established by Owner, or (ii) alienate, hypothecate or otherwise encumber any of the moneys or assets which are the property of Owner except in the ordinary course of business.

ARTICLE 11

BOOKS AND RECORDS

11.1 Maintenance of Books and Records. Operator shall keep and maintain the books and records of the Condo-Hotel, and the financial position and the results of operations recorded, in a manner that shall reflect all transactions of the Condo-Hotel and shall otherwise be appropriate and adequate for the business of the Condo-Hotel in accordance with all Legal Requirements and GAAP for financial reporting purposes and in accordance with all Legal Requirements for tax reporting purposes. The books and records shall be kept on the accrual method of accounting applied in a consistent manner and shall reflect all transactions of the Condo-Hotel as appropriate and adequate for Owner’s business in a manner consistent with MGM MIRAGE’S practices and reporting policies for its wholly-owned properties.

11.2 Inspection of Books and Records. Operator shall afford to Owner, any Member of Owner, and the accountants, attorneys and agents of Owner or such Member the right at any time and for any reason during the Term during normal business hours to inspect, at Owner’s sole cost and expense, the Condo-Hotel or examine and make extracts from the books and records of the Condo-Hotel. Such inspections and examinations shall be made with as little disruption to the business operations of the Condo-Hotel as reasonably practicable. Upon the termination of this Agreement, all books and records of the Condo-Hotel shall forthwith be turned over to Owner so as to ensure the orderly continuation of the operation of the Condo-Hotel; provided, however, that all such books and records shall thereafter be available for a period of five (5) years to Operator for inspection, audit, examination and extracting, at all reasonable times and at Operator’s sole cost and expense, upon two (2) Business Days’ prior written notice to Owner.

11.3 Monthly and Quarterly Reports. Operator shall deliver to Owner, or to any Member upon request, within fifteen (15) days after the end of (i) each Accounting Month and (ii) each Quarterly Period; unaudited financial statements prepared from the books of account maintained by Operator with respect to the Condo-Hotel for each Accounting Month (“Monthly Statements”) and for each Quarterly Period (the “Quarterly Statements”) (the Monthly Statements and the Quarterly Statements, collectively, the “Reporting Period Statements”) containing: (a) a balance sheet as of the end of each Accounting Month and Quarterly Period; (b) an income statement showing the results of operation of the Condo-Hotel for each Accounting Month and Quarterly Period; and (c) a statement of Gross Revenue, Operating Expenses and EBITDAM. The Reporting Period Statements shall also show, to the extent applicable: (x) the amount of the Base Management Fee, Incentive Management Fee and/or any other fee payable to Operator pursuant to this Agreement, earned and accrued for the fiscal period then ended, and (y) an accounting with respect to the Shared Components Reserve Fund for the Condo-Hotel showing the amount deposited therein during the fiscal period then ended, the amounts withdrawn therefrom during such period, and a statement, in reasonable detail, showing the purpose or purposes for which such withdrawals were made. The Reporting Period Statements shall include, either as part of the report or by supplemental schedule, sufficient information from which Owner can determine, for the period in question the Reimbursable Expenses paid to Operator under Section 6.3. The cost of preparing the Reporting Period Statements for the Condo-Hotel for each Operating Year shall be charged as an Operating Expense.

11.4 Annual Statements. Operator shall, not later than twenty (20) days following the conclusion of each Operating Year, cause to be prepared and delivered to Owner or any Member upon request, unaudited financial statements for the preceding Operating Year containing all of the items required for the Monthly Statements as set forth in Section 11.3 as well as a comparison of the results of operations (as may be consolidated) for the Condo-Hotel for the Operating Year then ended with the applicable approved Project Budget and with the comparable period in the prior Operating Year (the “Annual Statement”). Operator shall assist and cooperate with the Managing Member in providing Annual Statements of the Owner, as audited by the Company Accounts, required to be delivered by the Managing Member under the Joint Venture Agreement; provided, however, that to the extent that, as part of the audited Annual Statements of Owner prepared in accordance with the Joint Venture Agreement, a separate audit is performed and prepared for the Condo-Hotel, such audited financials shall be provided to Owner.

11.5 Audit Right of DW Member. DW Member reserves the right, in its sole discretion, and without cost or expense to Owner (unless any such audit is approved by MGM Member pursuant to the Joint Venture Agreement, in which case the audit shall be an operating expense of the Owner or as further provided in this Section 11.5), to conduct inspections and to audit the books and records of the Condo-Hotel as maintained by Operator following reasonable written notice of its intention to do so and a brief description of any specific materials comprising the books and records which DW Member is seeking to examine. DW Member will cooperate with Operator to undertake such audit in a collaborative manner so as not to disrupt the business enterprise. In requesting such audit and inspection of the books and records of the Condo-Hotel, DW Member is not required to provide any reason or to assert any claim or disagreement with any information, financial reports, or financial information previously provided to DW Member in connection with this Agreement or otherwise. DW Member agrees to limit the exercise of its audit rights pursuant to this Section 11.5 to once in any twelve (12) month period, unless DW Member has a good faith reason to believe that an additional audit during such period is necessary or advisable. Operator shall provide to the Owner and DW Member the location of the books and records for the Condo-Hotel if such location is not at the offices of Operator. Operator shall no relocate the books and records relating to the Condo-Hotel, or if in electronic form, change the manner and form of access and storage for those records specific to the Condo-Hotel at any time during the Term without the prior written notice to and the consent of DW Member. Notwithstanding anything to the contrary contained in this Section 11.5, if, during the course of any audit conducted pursuant to this Section 11.5, any of Gross Revenue or Operating Expenses as set forth in the Reporting Period Statements or Annual Statement, as applicable, for the Condo-Hotel are found to be overstated by either (i) Five Million Dollars ($5,000,000) of Gross Revenue or (ii) Five Hundred Thousand Dollars ($500,000) of Operating Expenses, as the case may be, then Operator immediately shall (a) reimburse to the DW Member or Owner, as applicable, the cost of such audit out of Operator’s own funds, and (b) correct the misstatements and pay any amounts owing to the DW Member or Owner, as applicable, as shown by such audit; provided, however, that the DW Member or Owner, as applicable, shall only be entitled to such reimbursement if the cost of such audit is reasonable in light of discrepancies sought or in good faith proposed to be recovered. If any audit conducted pursuant to this Section 11.5 discloses an overstatement greater than any of the thresholds in the immediately preceding sentence, then Operator immediately shall correct the misstatements and pay any amounts owing to the DW Member or Owner, as applicable.

ARTICLE 12

CENTRALIZED SERVICES AND REIMBURSABLE SERVICES

12.1 Non-Reimbursable Centralized Services. Except as otherwise specifically provided for in the Development Management Agreement, MGM MIRAGE and/or its Affiliates shall provide (or cause to be provided) to the Condo-Hotel the centralized services, which consist of services provided directly by MGM MIRAGE utilizing its internal resources and as described below, as well as all other services that are presently and from time to time in the future generally provided by MGM MIRAGE and/or its Affiliates to the Operator Group Hotels to the extent consistent with the Operating Standard (collectively, the “Centralized Services”). Under no circumstances shall any third party expense incurred solely for the benefit of the Condo-Hotel be included as a Centralized Service. Notwithstanding the foregoing, while Owner acknowledges and agrees that the services that presently comprise the Centralized Services are not static and may be changed, modified, amplified, upgraded and revised from time to time by MGM MIRAGE and its Affiliates, MGM MIRAGE and Operator and their respective Affiliates acknowledge and agree that: (i) MGM MIRAGE and Operator and their respective Affiliates may add, reduce or eliminate any Centralized Services provided to Owner and to the Condo-Hotel only in the event that the same are added, reduced or eliminated at all or substantially all other Operator Group Hotels; and (ii) in the event of a material addition, reduction or elimination of some or all of the Centralized Services, the Operating Fee may be equitably adjusted only after consultation with Owner and DW Member and good faith negotiation amongst such parties concerning any such proposed adjustment which in no event shall be less favorable than the proportionate adjustment of the corporate allocation to the Operator Group Hotels. In the event that MGM MIRAGE and, with the consent of DW Member, Owner are unable to reach agreement concerning the adjustment to be made, then in the case of an addition, the proposed service shall not be added and in the case of a reduction or an elimination the Operating Fee shall be reduced by an amount equal to the costs associated with the provision of the eliminated or reduced service each Operating Year during the Term.

12.1.1 Advertising. MGM MIRAGE shall provide the professional and administrative support utilizing its internal resources for the advertising campaign of the Condo-Hotel and the CityCenter Project including, but not limited to, media placement, agency management and other services as may change from time to time. In addition, MGM MIRAGE shall include the Condo-Hotel, as appropriate, in any centralized marketing program that includes the other Operator Group Hotels in a similar brand position.

12.1.2 Information Systems. The Condo-Hotel shall utilize all information systems necessary to enable the Condo-Hotel to function both independently and with the Operator Group Hotels, including each of the systems, licenses, facilities, and services, including, but not limited to access to the “Help Desk” and corporate IS support, typically provided to the other Operator Group Hotels.

12.1.3 Centralized Marketing. MGM MIRAGE shall provide centralized marketing services, both national and international, to the Condo-Hotel to promote, develop and sustain relationships with existing casino customers as is typically provided to the top brands within the other Operator Group Hotels. This shall include support from any established national or international branch offices.

12.1.4 Other Corporate Allocations. MGM MIRAGE shall supply to the Condo-Hotel, among other things, each of the products and services set forth on Exhibit B as is typically provided to the other Operator Group Hotels.

12.1.5 Purchasing. As of the Effective Date, Operator maintains the Purchasing Program as a Centralized Service at prices and terms that generally reflect competitive market rates. Notwithstanding anything to the contrary contained in this Agreement, (i) Operator hereby covenants and agrees that it shall act in a prudent manner when purchasing items for the Condo-Hotel and in a manner consistent with the standard of care set forth in Section 3.3, whether under a Purchasing Program or otherwise, and shall use commercially reasonable efforts to achieve the lowest available price for any Equipment or Operating Equipment being purchased (provided that such Equipment and Operating Equipment is in compliance with the Operating Standard) and (ii) any rebate received from a vendor or supplier under a contract for the Condo-Hotel (or for any regional or national contract covering other Operator Group Hotels) shall be equitably apportioned to Owner in the case of regional or national contracts.

12.2 Cost and Expense. Other than as specifically provided for in the Development Management Agreement, the Centralized Services (other than third party expenses) shall be provided at no cost or expense to Owner and the Condo-Hotel (as the same are included in the payment of Operating Fees), and, other than as specifically provided for in the Development Management Agreement, Operator acknowledges and agrees that in no event shall MGM MIRAGE or Operator or any Affiliate thereof pass through to Owner or the Condo-Hotel or otherwise seek payment or reimbursement (as Reimbursable Expenses or otherwise) from Owner or the Condo-Hotel for any costs whatsoever incurred by MGM MIRAGE or Managers or any of their respective Affiliates (whether in the form of rent, utilities or other overhead, employee compensation, benefits or other or personnel costs, or any other internal cost or expense in any form incurred by MGM MIRAGE or Managers or any Affiliate thereof) for providing any Centralized Services.

12.3 Reimbursable Services. In addition to the Centralized Services provided pursuant to Section 12.1 above, Operator shall provide the services set forth in this Section 12.3 (the “Reimbursable Services”), and subject to Section 6.3, Operator and/or its Affiliates, as applicable, shall be reimbursed for all actual and reimbursable Operating Expenses directly incurred by such Operator or Affiliates in providing such Reimbursable Services.

(a) Bookings. Operator shall secure bookings for the Condo-Hotel for which reservations and advance bookings are consistent with industry requirements and the Operating Standard, through Operator’s sales and reservations offices and other distribution and sales systems, and shall encourage the use of the Condo-Hotel by tourists, special groups, travel congresses, travel agencies, airlines, and other recognized sources of Condo-Hotel business. Operator shall process reservations for the Condo-Hotel through Operator’s and its Affiliates’ worldwide communications network. To facilitate Operator’s provision of such reservations services, Owner agrees that the Condo-Hotel shall be listed in all airline reservations systems (which include what are known in the hospitality industry as global distribution systems) under the applicable code for Resort Hotel and Casinos operated under the “MGM MIRAGE” and “CityCenter” name. In addition to and independent from the reservations telephone line or communications device maintained by Operator or its Affiliates in connection with the

worldwide communications network of Operator and its Affiliates, Owner may, at its own election, also maintain and use (and require Operator to use) in connection with the Condo-Hotel a separate and dedicated toll-free or similar telephone line or communications device for making reservations at the Condo-Hotel. Throughout the Term, Owner shall permit Operator to load into the reservations system maintained by Operator and its Affiliates, and to maintain on a current basis, the Condo-Hotel total rooms inventory and all associated room rates.

ARTICLE 13

INSURANCE

13.1 Insurance to Be Maintained by Owner During Term. At all times during the Term, Owner shall procure and maintain, on behalf of Owner and Operator, insurance coverage respecting the Condo-Hotel in consultation with Operator. All premiums and other costs of such insurance, and any applicable deductibles or co-insurance requirements, shall be an Operating Expense of the Condo-Hotel. If Owner and Operator shall mutually agree, Operator shall procure such insurance on behalf of Owner. Operator does not purport to be an advisor on insurance matters and as between Owner and Operator, it shall be Owner’s responsibility to cause itself to be adequately insured. Operator shall propose the insurance coverage respecting the Condo-Hotel to be set forth in the Business Plan (as such term is defined in the Joint Venture Agreement) for submission to Owner for review and approval in accordance with the Joint Venture Agreement. The delivery of the proposal for the insurance coverage shall be made as soon as reasonably possible following the Effective Date. Furthermore, Owner shall be authorized to modify the insurance coverage that Operator, in accordance with the standard of care as set forth in Section 3.3 hereof, believes is in the best interest of the Condo-Hotel and to the extent that such modification would not constitute a Major Decision.

13.2 Insurance to Be Maintained by Manager During Term. Operator shall obtain and maintain (either itself or through blanket general liability insurance policies carried by MGM MIRAGE) during the Term of this Agreement insurance in the forms and coverages, policy limitations and amounts as are customarily obtained and retained by managers of similar projects in the hotel, casino, Gaming, and leisure and resort industry. All such coverages shall be at Operator’s (or, if applicable, MGM MIRAGE’S) sole cost and expense and shall not be an Operating Expense.

13.3 Waiver of Liability. Neither Operator nor Owner shall assert against the other, and each does hereby waive with respect to the other to the extent it is legally possible to do so, any Claims incurred or sustained by it on account of damage or injury to persons or property arising out of the ownership, operation or maintenance of the Condo-Hotel, to the extent that the same are covered by the proceeds received as a result of any insurance, so long as such waiver does not adversely affect such insurance coverage. Owner or the Operator, as the case may be, shall cause all policies to contain a waiver of subrogation clause to the extent the same shall be available at no extra cost and shall notify the other if a waiver of subrogation clause is not available at no extra cost, to permit Owner and Operator to determine if additional payments should be made to obtain the waiver of subrogation clause. The provisions of this Section 13.3 are intended to restrict each Party (as permitted by Legal Requirements) to recovery against insurance carriers to the extent of such coverage and waive fully, and for the benefit of each, any rights and/or Claims which might give rise to a right of subrogation in any insurance carrier.

ARTICLE 14

CONFIDENTIAL INFORMATION

14.1 Confidential Information. The Parties agree that the matters set forth in this Agreement are strictly confidential. In addition, the parties agree to keep strictly confidential all information of a proprietary or confidential nature about or belonging to the other Party or to any Affiliate of such Party to which the other Party gains or has access by virtue of the relationship between the Parties. Except as disclosure may be required to obtain the advice of professionals or consultants, or financing for the Condo-Hotel from an institutional lender, or in furtherance of a permitted assignment of this Agreement, or as may be required by law or by the order of any government, regulatory authority, or tribunal or otherwise to comply with Legal Requirements (including reporting requirements applicable to companies the shares or stock of which are traded on any stock exchange anywhere in the world) whether or not having the force of law, each party shall make every effort to ensure that such information is not disclosed to any third party without the prior consent of the other Party. The obligations set forth in this Section 14.1 shall survive any termination or expiration of this Agreement.

ARTICLE 15

MORTGAGES AND FINANCING

15.1 Right to Mortgage. Owner shall have the absolute and unrestricted right from time to time in its sole and absolute discretion to encumber all of the assets that comprise the Condo-Hotel, or any part thereof, all as contemplated in any Mortgage and/or Financing Instrument that is entered into by the Owner, and to assign all of the Owner’s right, title and interest in and to the Condo-Hotel or any part thereof as security for any Mortgage and/or Financing Instrument.

15.2 Subordination. Operator agrees that this Agreement shall in all respects be and is hereby expressly made subordinate and inferior to the liens, security interest and/or terms of any Mortgage and to the promissory note (or other evidence of repayment obligation) and other indebtedness now secured or hereafter to be secured thereby and to all other instruments evidencing or securing or to evidence or secure said indebtedness, and all amendments, modifications, supplements, consolidations, extensions and revisions of such note and other instruments.

15.3 Evidence of Subordination; Delivery of Separate Documents and Instruments. In addition, Operator shall, within ten (10) days after receipt of written notice from Owner or any Mortgagee and/or lender under any Financing Instrument, execute, acknowledge and deliver any and all estoppel certificates and other documents (including, without limitation, a subordination agreement allowing any such Mortgagee and/or lender to terminate Operator’s duties and obligations under this Agreement upon foreclosure) requested by the Owner and/or Mortgagee and/or any lender under any Financing Instrument that subordinates or evidences the subordination of this Agreement and Operator’s rights thereunder to any such Mortgage and/or Financing Instrument.

ARTICLE 16

PERFORMANCE TERMINATION

16.1 Performance Test. In addition to any other termination rights of Owner as set forth herein, Owner shall have the right to terminate this Agreement in the event of a Performance Test Failure. For purposes of this Section 16.1, a “Performance Test Failure” shall occur when the EBITDAM of the Condo-Hotel for any two (2) consecutive Operating Years (the “Performance Test Period”) commencing after the first (1st) Operating Year following the Opening Date (with the first Performance Test Period being the second (2nd) and third (3rd) full Operating Years following the Opening Date) for the Condo-Hotel is less than seventy-five percent (75%) of the EBITDAM set forth in the Project Budgets for the applicable Operating Years. In the event of a Performance Test Failure as set forth in this Section 16.1, Owner shall have the right, subject to Section 16.2, to terminate this Agreement provided that (a) a written notice of termination shall be given to Operator within sixty (60) days after receipt by Owner of the applicable Certified Financial Statements, and (b) such notice shall specify a termination date not less than sixty (60) days nor more than ninety (90) days after the giving of such notice. Notwithstanding the foregoing, in determining whether a Performance Test Failure has occurred, the Parties acknowledge and agree that the EBITDAM shall be equitably adjusted to account for the following circumstances: (1) a Force Majeure Event, (2) failure of Owner to provide Working Capital funds as required under this Agreement, or any other Event of Default, (3) a Casualty, (4) a Condemnation, or (5) if the Condo-Hotel has fewer Residential Units participating in the Rental Program than projected.

16.2 Cure Right. Notwithstanding Section 16.1, if Owner shall have the right to terminate this Agreement pursuant to such Section 16.1, and shall have delivered a written notice of such termination in accordance with such Section 16.1, then within ninety (90) days after receipt by Operator of such notice, Operator shall have the right (the “Cure Right”), but not the obligation, to pay to Owner the difference between (a) seventy-five percent (75%) of the projected EBITDAM set forth in the Project Budgets for both Operating Years giving rise to Owner’s right to terminate, and (b) the actual EBITDAM for such Operating Years. In the event Operator exercises its Cure Right and makes such payment, Owner’s notice of termination shall be deemed withdrawn and Owner shall not have the right to send another notice of termination unless the conditions of Section 16.1 are met for each of two (2) consecutive Operating Years thereafter, in which case the Cure Right may be exercised again.

ARTICLE 17

DEFAULT AND TERMINATION

17.1 Events of Default.

17.1.1 Events of Default on the Part of Either Party. The following will, at Operator’s election, constitute an event of default by Owner under this Agreement (each such event being referred to herein as an “Event of Default”) but Operator acknowledges and agrees that Owner will not be in default or breach of this Agreement if such default or breach arises from an action or omission of Operator or any of its Affiliates (including without limitation MGM MIRAGE) or arises regarding a matter that is within the control of Operator or its Affiliates (including without limitation MGM MIRAGE):

(a) Monetary. The failure of either Party to pay to the other Party when due any sum which may become due with respect to the Condo-Hotel within ten (10) days after receipt by the defaulting Party of written notice from the other Party specifying such failure;

(b) Non-Monetary. The failure by any Party timely to perform, keep or fulfill all or any portion of the material terms, covenants, undertakings, obligations or conditions set forth in this Agreement with respect to the Condo-Hotel, and the continuance of such failure for a period of sixty (60) days after receipt by the defaulting Party of written notice thereof from the other Party specifying such failure, provided that in the event such failure is amenable to cure and is of a nature that it cannot, with due diligence, all commercially reasonable efforts, and in good faith, be cured within sixty (60) days, it shall not constitute an Event of Default unless such defaulting Party fails to proceed promptly and with due diligence, all commercially reasonable efforts, and in good faith to cure the same, and thereafter to prosecute the curing of such failure with due diligence and in good faith (it being intended that, in connection with a failure not susceptible of being cured with diligence and in good faith within sixty (60) days, the time of such defaulting Party within which to cure the same shall be extended for such period as may be necessary for the curing thereof with due diligence, all commercially reasonable efforts and in good faith);

(c) Insolvency. If any Party shall apply for or consent to the appointment of a receiver, trustee or liquidator of such Party or of all or a substantial part of its assets, file a voluntary petition in bankruptcy or admit in writing its inability to pay its debts as they come due, make a general assignment for the benefit of creditors, file a petition or an answer seeking reorganization or agreement with a creditor or take advantage of any insolvency law, or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding, or if an order, judgment or decree shall be entered by any court of competent jurisdiction, on the application of a creditor, adjudicating such Party a bankrupt or insolvent or approving a petition seeking reorganization of such Party or appointing a receiver, trustee or liquidator of such Party or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of ninety (90) consecutive days; or

(d) Transfer. If any Party shall assign this Agreement in violation of Section 21.7;

(e) Default by MGM MIRAGE. Any breach or default by MGM MIRAGE of the provisions of Section 21.5 of this Agreement.

17.2 Excused Non-Performance. Notwithstanding any contrary provision of this Agreement, Operator shall be excused from the performance of any obligation hereunder (including the obligation to operate the Condo-Hotel in conformity with the Operating Standard), and shall not be deemed in default, for such period of time as such performance is prevented by a Force Majeure Event, a breach of this Agreement by Owner or a limitation imposed on Operator’s ability to expend funds in respect of the Condo-Hotel, due to Owner’s act or Owner’s failure to act upon Operator’s request for funds (provided Operator has provided Owner with reasonably timely notice of the need for additional funds and that the failure to expend funds by

reason of the operation of such limitation shall reasonably prevent Operator from meeting such obligation).

17.3 Remedies and Other Termination Rights.

17.3.1 Right to Terminate upon an Event of Default as set forth in Section 17.1.1. Subject to the terms and conditions of this Agreement, the non-defaulting Party shall, at its option, give to the defaulting Party notice, following the expiration of the applicable cure period as may be set forth in Section 17.1.1(a) through Section 17.1.1(e), of its intention to pursue any right to any and all remedies (including specific performance, indemnification for breach of this Agreement and other equitable relief or any and all right to damages) which the non-defaulting Party may have against the defaulting Party under Legal Requirements or equity subject to the terms of this Agreement. Notwithstanding the foregoing, if an Event of Default shall occur with respect to this Agreement that does not constitute a Material Event of Default, the non-defaulting Party shall not have the right to terminate this Agreement, but shall have the right to exercise any and all remedies (including specific performance and other equitable relief or any and all right to damages or claims to indemnification) which the non-defaulting Party may have against the defaulting Party under Legal Requirements or equity subject to the terms of this Agreement.

17.3.2 Right to Terminate upon Material Breach of the Standard of Care. In the event that Operator shall commit a breach of the standard of care set forth in Section 3.3, then DW Member may, at its option, give to the defaulting Party notice of its intention to terminate this Agreement after the expiration of a period of thirty (30) days from the date of such notice if the Event of Default has not been cured prior to expiration of such thirty (30) day period, and, upon expiration of such period, this Agreement shall terminate on the date specified in the notice. Such termination shall be without prejudice to any right to any and all remedies (including specific performance and other equitable relief or any and all right to damages) which the non-defaulting Party may have against the defaulting Party under Legal Requirements or equity subject to the terms of this Agreement. For purposes of this Agreement, a breach under this Section 17.3.2 shall be deemed a Material Event of Default.

17.3.3 Right to Terminate upon a Material Event of Default, Condo-Hotel. Subject to the terms of this Agreement, if an Event of Default (or series of related Events of Default) shall occur with respect to the CityCenter Project (or any Component thereof) pursuant to any of the Project Agreements that would, in the aggregate, result in a monetary loss to either Party in excess of Twenty-Five Million Dollars ($25,000,000) (a “Material Event of Default”), the non-defaulting Party may, at its option, give to the defaulting Party notice of its intention to terminate this Agreement after the expiration of a period of thirty (30) days from the date of such notice if the Event of Default has not been cured prior to the expiration of such thirty (30) day period, and, upon expiration of such period, this Agreement shall terminate on the date specified in the notice. Such termination shall be without prejudice to any right to any and all remedies (including specific performance and other equitable relief or any and all right to damages) which the non-defaulting Party may have against the defaulting Party under Legal Requirements or equity subject to the terms of this Agreement. Notwithstanding the foregoing, if an Event of Default shall occur with respect to this Agreement that does not constitute a Material Event of Default, the non-defaulting Party shall not have the right to terminate this Agreement, but shall

have the right to exercise any and all remedies (including specific performance and other equitable relief or any and all right to damages or claims to indemnification) which the non-defaulting Party may have against the defaulting Party under Legal Requirements or equity subject to the terms of this Agreement.

17.3.4 Cross Termination. The Parties acknowledge and agree that a termination of the Hotel and Casino Management Agreement for any reason shall result in the immediate termination of this Agreement and the Crystals Retail Management Agreement, without further action of the Parties, which termination shall be effective on, at and as of on the effective date of the termination of the Hotel and Casino Management Agreement.

17.3.5 Governmental Approvals. In the event any such approval or permit, or any such approval or permit in connection with Operator operation of the premises, cannot be obtained or can be obtained but only in connection or compliance with, or upon the satisfaction of, requirements, limitations or restrictions which are not reasonably satisfactory to Owner or Operator, either the Owner or Operator may, in its respective sole discretion, terminate this Agreement.

17.4 DW Member Enforcement; Termination Rights. DW Member shall have the power and authority to enforce any breach or to allege and enforce any Event of Default under this Agreement without the necessity of including Owner in any such action, it being understood that the right of the DW Member to enforce and require the performance of all of the terms, covenants, and conditions of this Agreement is an independent right granted by the Parties to DW Member pursuant to this Agreement. Operator acknowledges to and for the benefit of DW Member that it does not and is not authorized to waive, on behalf of Owner, the occurrence or continuance of any default or Event of Default or Material Event of Default of this Agreement without the prior written consent of DW Member, which consent may be withheld by DW Member in its sole and absolute discretion. In addition, DW Member may, in its sole and absolute discretion, enforce the provisions of this Agreement and terminate this Agreement on behalf of Owner immediately upon written notice to Operator if:

17.4.1 At any time during the Term, the Owner has the right to terminate this Agreement pursuant to Section 17.3.

17.4.2 At any time during the Term, Operator or its Affiliates cease, collectively, to own directly or indirectly at least ten percent (10%) of the equity of the Owner as a result of the Transfer of such equity interest to DW Member or an Affiliate thereof;

17.4.3 A foreclosure on the CityCenter Project occurs (unless, pursuant to any subordination and non-disturbance agreement between Operator, Mortgagee and/or a lender, this Agreement may otherwise remain in place); or

17.4.4 Owner Transfers the CityCenter Project to an unrelated bona fide third-Party purchaser (unless the purchaser, at its option, elects to keep this Agreement in place for the remaining Term or portion thereof).

In the event of any such termination in accordance with this Section 17.4, in no event shall Owner or DW Member be required to pay to MGM MIRAGE or Operator a termination fee, penalty or additional fee.

17.5 Operator’s Termination Rights. Operator may, on behalf of MGM MIRAGE, in its sole and absolute discretion, in addition to any other termination right granted to Operator in accordance with the express terms of this Agreement, terminate this Agreement immediately upon written notice to Owner if:

17.5.1 At any time during the Term, DW Member or its Affiliates cease, collectively, to own directly or indirectly at least ten percent (10%) of the equity of the Owner as a result of the Transfer of such equity interest to Operator or an Affiliate thereof; or

17.5.2 Owner Transfers the CityCenter Project to an unrelated bona fide third-Party purchaser.

In the event of any such termination in accordance with this Section 17.5, in no event shall MGM MIRAGE or Operator be required to pay to Owner or any member or other equity owners of Owner a termination fee, penalty or additional fee.

17.6 Rights and Obligations on Termination. Unless otherwise specifically provided in this Agreement, the termination of this Agreement shall not affect (a) the rights of either Party with respect to liability or claims accrued, or arising out of events occurring prior to the date of the termination of this Agreement, or (b) specific rights which this Agreement provides shall survive termination. Upon the termination of this Agreement for any reason under this or any other Article contained herein, the following provisions, which shall survive termination of this Agreement, shall be applicable in addition to, and without limiting any other rights of Owner or Operator pursuant to this Agreement or at law or equity:

17.6.1 Amounts Due; Receivables. All accrued and unpaid fees, charges, reimbursements, and other payments due Operator under this Agreement as of the date of termination (including but not limited to any portion of any Operating Fees, and any portion of any Compensation and any other Reimbursable Expenses) shall be paid by Owner to Operator within ten (10) days after the remittance to Owner by Operator of statements therefor. All accrued unpaid amounts, charges, reimbursements, and other payments due Owner by Operator pursuant to this Agreement shall be paid by Operator to Owner within thirty (30) days of termination or expiration of the applicable agreement. The Operating Account and any remaining funds therein after payment of the foregoing shall be promptly transferred to Owner. All receivables of the Condo-Hotel outstanding as of the effective date of termination, including, without limitation, guest ledger receivables, shall continue to be the property of Owner.

17.6.2 Permits. To the extent assignable, Operator shall assign and transfer to Owner all of Operator’s right, title and interest in and to all liquor, restaurant and other licenses and permits, if any, which apply solely to the Condo-Hotel. Operator shall use commercially reasonable efforts to provide Owner with a complete listing of all permits and licenses (whether or not in Operator’s name or in the name of Owner) as soon as reasonably practicable prior to the effective date of termination so as to permit Owner or successor operator sufficient time to apply

for new licenses or permits or to effect transfer to Owner’s name or the name of successor operator. The foregoing shall be without fee or other compensation to Operator; provided, however, that if Operator has expended any of its own funds in connection with the foregoing pursuant to this Section 17.6.2, Owner shall, subject to Section 6.3, reimburse Operator therefor.

17.6.3 Vacate. Operator shall peacefully vacate and surrender the Condo-Hotel to Owner, and shall deliver to Owner any and all keys, locks and safe combinations, reservation lists, ledgers, bank statements for the Operating Account, budgets, accounting books and records, insurance policies, bonds and other documents, memoranda, schedules, lists, contracts, agreements, leases, licenses, with respect to the Condo-Hotel all as is reasonably necessary to permit continued and uninterrupted operation of the Condo-Hotel, complete copies of correspondence, other files and records generated by Operator in the course of operating the Condo-Hotel and relating exclusively to the Condo-Hotel, nonproprietary software used in the accounting, reservation and other systems of the Condo-Hotel and any licenses required for use thereof, all depository accounts for the Condo-Hotel including the Operating Account and the Shared Components Reserve Fund, and other items required for the operation of the Condo-Hotel. Notwithstanding the foregoing, Operator shall not be required to assign to Owner pursuant to the foregoing sentence any Proprietary Information. Accounting and other books and records shall include all electronic as well as paper records, except in the case of any software that is proprietary to Operator or its Affiliates. If any such non-Proprietary Information is maintained Operator or its Affiliates in a regional or central location and is not located at the Condo-Hotel, Operator shall cause such information with respect to the Condo-Hotel to be electronically transferred into systems designated by Owner (including systems of a successor operator) to the extent electronic data is compatible with Owner’s or successor operator’s systems and if not compatible shall cooperate, in all reasonable respects, with Owner and the successor operator in seeking to convert such data to a compatible format. Costs and expenses incurred in connection with any of the foregoing shall be an Owner expense and shall not be the obligation or liability of Operator.

17.6.4 Management Transition. Operator shall cooperate in all reasonable ways in the transition of the operation and management of the Condo-Hotel to Owner or Owner’s new operator to effect an orderly and expeditious transition of management functions, with as little hindrance to the operation of the Condo-Hotel as reasonably practicable.

17.6.5 Notification of Vendors; Assignment or Termination of Service Contracts. Operator shall assign to Owner all service and supply contracts for the Condo-Hotel which Operator made in its own name in accordance with this Agreement, except for contracts which may not be assigned, or which are with an Affiliate of Operator, or which can be terminated without penalty upon termination and which Owner timely requests be terminated as of the date of termination of this Agreement.

17.6.6 Bookings. To the extent applicable to the Condo-Hotel, Operator shall, no later than the effective date of termination, provide Owner with a complete list of all bookings, the terms applicable thereto, and the amount of advance deposits (if any) received with respect to each such booking for the Condo-Hotel. Owner shall honor, and shall cause any successor operator to honor, all business confirmed for the Condo-Hotel, as applicable, with reservations

dated after the effective date of termination in accordance with such bookings as have been accepted by Operator.

17.6.7 Turn-Over of Guest Property. With respect to the Condo-Hotel, Operator and Owner will employ customary procedures on the date of termination for the transfer of custody of and responsibility for guest property checked with the Condo-Hotel, as applicable, including stored luggage (which will be inventoried and tagged) and safe deposit boxes (each of which will be sealed until the depositor has been notified to check the contents, then opened in the presence of a representative of Operator and Owner).

17.6.8 Financial Statements. Operator shall prepare and deliver to Owner, within thirty (30) days following the effective date of expiration or termination of this Agreement, an accounting as described in Section 11.4, which accounting shall be in final form to the extent practicable, the cost of which shall be an Operating Expense of the Condo-Hotel. Operator shall continue to cooperate with Owner and be available, and make any books and records available to the extent necessary, in order for Owner and the accountants to prepare the Annual Statement for the Condo-Hotel for the last such Operating Year as provided in Section 11.4, including specifically the period up to the termination date together, to the extent applicable, with the calculation of the amount of the Operating Fee through the effective date of termination.

17.6.9 Personnel. Owner acknowledges that since the Personnel will be employees of Operator and/or its Affiliates (unless otherwise permitted or provided herein), the termination of this Agreement may result in a termination of such Personnel. Upon termination of this Agreement, an escrow fund shall be established from Gross Revenue (or with funds provided by Owner if Gross Revenue is insufficient) to, subject to Section 6.3, reimburse Operator and its Affiliates for all Personnel liability costs and expenses incurred by Operator or its Affiliates arising out of either the transfer or termination of employment of the Personnel, including, without limitation, severance and seniority payments, reasonable transfer costs, and unemployment compensation. The determination of liability as to the payment of the foregoing expenses attributed to Personnel upon termination of this Agreement including liability for all accrued payroll, accrued benefits (such as benefit plans, pension plans, profit sharing plans, vacation pay and sick days and other similar accrued employment liabilities, including, without limitation, severance obligations), and other employment matters if any, through and including the date of such termination shall be made in connection with the overall determination and award of damages or compensation, if any, following such termination to the Party not causing the Event of Default or right of termination under this Agreement.

17.7 WARN Act; 401(k) Compliance.

17.7.1 WARN Act. Owner acknowledges that Operator or its Affiliates may have an obligation under federal, state, or local law to give advance notice to the Personnel of any termination of their employment, and that failure to comply with any such notification obligation could give rise to civil liabilities. Operator and Owner shall exercise commercially reasonable efforts to cooperate with Owner in carrying out the advance notice requirements of any Legal Requirements, and any failure by either Operator or Owner in that regard shall be a breach of this Agreement.

17.7.2 401(k) Compliance. On any termination or expiration of this Agreement, whether by Transfer of the Condo-Hotel, expiration of the Term of this Agreement, or early termination through exercise of other rights of the Parties hereto, if the successor employer will, or intends to, offer a 401(k) plan for the Personnel of the Condo-Hotel, and if such Personnel participate in a 401(k) plan at such time, Owner or its successor (or the successor of Operator) shall offer a 401(k) plan to such of the participating employees who will continue to work at the Condo-Hotel thereafter, and the new Owner or successor Operator shall accept (and is permitted to accept under its plan and applicable law) a trust-to-trust transfer of the participants’ 401(k) assets in a manner that complies with all applicable law and the Condo-Hotel will make such transfer subject to reasonable assurances that the transfer will satisfy all Legal Requirements and not adversely affect its 401(k) plan.

ARTICLE 18

CASUALTY AND CONDEMNATION

18.1 Casualty. In the event the Condo-Hotel (or any component thereof) shall be damaged or destroyed by any Casualty, Owner shall have the right, in its sole option, in accordance with the Joint Venture Agreement and the Condominium Documents (specifically Section 14 of the Declaration), to elect whether or not to undertake a restoration of the Condo-Hotel or any damaged component thereof. In the event Owner elects to proceed with the restoration, (i) Owner shall, in a commercially reasonable manner, undertake the restoration with respect to that portion of the Condo-Hotel owned by Owner and, with respect to that portion of the Condo-Hotel not owned by Owner, Owner shall exercise its rights under the Condominium Documents, if any, to cause the Condominium Association and/or Unit Owners, as applicable, to undertake the restoration with respect to that portion owned by the Condominium Association and/or the Unit Owners, and (ii) Operator shall provide such technical and development assistance as reasonably necessary to complete such restoration in a timely and cost-efficient manner, at Owner’s sole cost and expense. Any insurance proceeds obtained as a result of a Casualty shall be held by Owner in trust and allocated in accordance with the terms set forth in the Condominium Documents, including, but not limited to, the provisions of Section 14.2 of the Declaration.

18.2 Condemnation. If all or substantially all of the Condo-Hotel (or any component thereof) shall be taken or condemned in any eminent domain, condemnation, compulsory acquisition or like proceeding by (or a deed in lieu of condemnation given by Owner to) any competent authority for any public or quasi public use or purpose (hereinafter called a “Condemnation”), or if such a portion of the Condo-Hotel (or any component thereof) shall be the subject of a Condemnation so as to make it imprudent or unreasonable, in the reasonable opinion of Owner, to use the remaining portion in the same fashion as immediately preceding such Condemnation, then in either event either Owner or Operator shall have the right to terminate this Agreement, in the event of a Condemnation of all or substantially all of the Condo-Hotel, as of the earlier to occur of (i) the date that Owner shall be required to surrender possession of the Condo-Hotel or such portion thereof as a consequence of such Condemnation, and (ii) ninety (90) days after the date on which such determination, and neither Party shall have any obligation to the other excluding those obligations that expressly survive this Agreement. Other than a Condemnation that affects the Condo-Hotel, if a Condemnation affects only a part of the Condo-Hotel (or any component thereof) that does not make it imprudent, unsuitable or

commercially impractical to operate the remainder of the Condo-Hotel (or any component thereof) in the same fashion as immediately preceding such Condemnation, this Agreement shall not terminate. Any Condemnation award or similar compensation received by Owner on account of any Condemnation as set forth in this Section 18.2 shall be the property of Owner (and, possibly, the Unit Owners, as applicable, pursuant to the terms of the Condominium Documents, including, but not limited to, Section 15.1 of the Declaration), and Operator shall make no claim with respect thereto. Should Owner decide, pursuant to its rights and obligations set forth in Section 15 of the Declaration, to alter, repair, rebuild or replace those portions of the Condo-Hotel owned by Owner, Owner shall do so in a manner so as to make the Condo-Hotel a satisfactory architectural unit as a condo-hotel of substantially similar type and class as prior to the Condemnation, and with respect to portion of the Condo-Hotel not owned by Owner, Owner shall exercise its rights under the Condominium Documents, if any, to cause the Condominium Association to repair, rebuild or replace the Condo-Hotel so as to make the Condo-Hotel a satisfactory architectural unit as a condo-hotel of substantially similar type and class as prior to the Condemnation.

ARTICLE 19

INDEMNIFICATION

19.1 Indemnification by Operator. MGM MIRAGE and Operator specifically shall defend, indemnify, protect, and hold Owner, and its officers, directors, shareholders, employees, agents and representatives harmless from and against any and all third-party Claims, arising from Operator’s (i) gross negligence or willful misconduct, or (ii) breach of this Agreement.

19.2 Indemnification by Owner. Owner shall defend, indemnify, and hold harmless Operator, and its Affiliates, and their respective trustees, beneficiaries, directors, officers, employees and agents, and the successors and assigns of each of the foregoing, for, from and against any and all third-party Claims arising from Owner’s (i) gross negligence or willful misconduct, or (ii) breach of this Agreement.

19.3 Survival. The provisions of this ARTICLE 19 shall survive the termination or the expiration of this Agreement.

ARTICLE 20

REPRESENTATIONS AND WARRANTIES

20.1 Operator’s Representations and Warranties. Operator represents and warrants to Owner as of the Effective Date that:

20.1.1 Organization. Operator is duly formed or organized and is validly existing and in good standing in the jurisdiction in which it is organized, with requisite power and authority to transact the businesses in which it is now engaged. Operator is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the operation of the Condo-Hotel, and the conduct of its businesses and operations. Operator possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to transact the businesses in which it is now engaged (it being understood and agreed, however, that certain such licenses, permits and authorizations, etc.

required for the operation of the Condo-Hotel such as liquor and Gaming licenses may be held in the name of Owner and/or other third parties for the benefit of Owner and/or the Condo-Hotel).

20.1.2 Proceedings. The execution, delivery and performance of this Agreement has been duly authorized by all necessary limited liability company actions of Operator. This Agreement has been duly executed and delivered by or on behalf of Operator and constitutes legal, valid and binding obligations of Operator enforceable against Operator in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

20.1.3 No Conflicts. The execution, delivery and performance of this Agreement by Operator will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Owner pursuant to the terms of any Mortgage or partnership agreement, nor will such action result in any violation of the provisions of any Legal Requirements.

20.1.4 Litigation. To Operator’s actual knowledge, there are no actions, suits or proceedings at law or in equity by or before any governmental authority or other agency now pending or threatened in writing against or affecting Operator, which actions, suits or proceedings, if determined against Operator’s interest in the Condo-Hotel, can reasonably be expected to have a material adverse effect on Operator’s ability to carry out and perform the terms and provisions of this Agreement.

20.1.5 Agreements. Operator is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Project Agreement or instrument to which it is a Party or by which Operator or the Condo-Hotel is bound.

20.1.6 Licenses and Permits. Operator holds, to the extent required pursuant to relevant Legal Requirements, all necessary permits and licenses to operate and manage the Condo-Hotel subject to this Agreement that such Manager is required to obtain pursuant to such Legal Requirements on its own behalf.

20.2 Owner’s Representations and Warranties. Owner represents and warrants to Operator as of the Effective Date that:

20.2.1 Organization. Owner is duly formed or organized and is validly existing and in good standing in the jurisdiction in which it is organized, with requisite power and authority to transact the businesses in which it is now engaged. Owner is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the ownership of the Condo-Hotel, and the conduct of its businesses and operations. Owner possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to transact the businesses in which it is now engaged.

20.2.2 Proceedings. The execution, delivery and performance of this Agreement has been duly authorized by all necessary limited liability company actions of Owner. This

Agreement has been duly executed and delivered by or on behalf of Owner and constitutes legal, valid and binding obligations of Owner enforceable against Owner in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).

20.2.3 No Conflicts. The execution, delivery and performance of this Agreement by Owner will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Owner pursuant to the terms of any Mortgage or partnership agreement, nor will such action result in any violation of the provisions of any Legal Requirements.

ARTICLE 21

GENERAL PROVISIONS

21.1 Owner’s Consultants. Operator shall cooperate with such Owner’s consultants and representatives, and also shall cooperate with Owner and any actual or prospective purchaser, underwriter, lender or other person in connection with any actual or proposed sale, investment, offering, debt placement or financing of or related to the Condo-Hotel (provided that Operator shall not be required to release to any such person any of Operator’s Proprietary Information or by reason of such cooperation incur any underwriting liability). Such cooperation may include the preparation of customary lists and schedules (such as, for example, for inventories) and other information relating to the Condo-Hotel, to the extent regularly maintained or compiled, or if the requested information is reasonably available to Operator, as may be reasonably requested by a prospective purchaser, underwriter, lender or other person.

21.2 Third-Party Operated Areas. The Parties acknowledge that certain areas of the CityCenter Project may be operated by Third-Party Operators under a lease, operating agreement, franchise agreement or similar agreement. The operation of any Third-Party Operated Areas by a Third-Party Operator, and the selection of a Third-Party Operator for such Third-Party Operated Areas, shall be subject to the approval of both Owner and Operator (to the extent the approval of such Third-Party Operator constitutes a Major Decision). Any lease, operating agreement, franchise agreement or similar agreement with a Third-Party Operator shall: (i) be consistent with the terms of this Agreement; (ii) require the Third-Party Operators to operate the Third-Party Operated Areas in a manner consistent with the terms of this Agreement and; (iii) be subject to the review and prior written approval of the Operator. For the avoidance of doubt, all lease or rental income derived from Third-Party Operated Areas shall be included in Gross Revenue, but all gross receipts derived from the operation of Third-Party Operated Areas shall be excluded from Gross Revenue.

21.3 Management of Infrastructure. The management, operation and maintenance of the Infrastructure shall be governed by the Hotel and Casino Management Agreement. In connection therewith, Owner acknowledges and agrees that the Condo-Hotel shall be charged with its fair and reasonable share of the costs of the routine operation, inspection and maintenance of the Infrastructure and any utilities and/or common fixtures located thereon to the

extent shared by or provided for the benefit of the Condo-Hotel. The Condo-Hotel’s share of such costs shall be paid from Gross Revenue as an Operating Expense.

21.4 Third Party Beneficiaries. The Parties acknowledge and agree that DW Member shall be an express third party beneficiary of this Agreement. Except for the rights and privileges granted to the DW Member under this Agreement, and the limitation of liability with respect to the MGM MIRAGE Restricted Affiliates and the Dubai World Restricted Affiliates, under Section 21.24.1(a) and Section 21.24.1(b) of this Agreement, all the provisions of this Agreement are intended to bind and to benefit only the Parties hereto and their permitted successors and assigns. Except as provided in the immediately preceding sentence, it is not intended that any such provisions benefit, and it shall not be construed that these provisions benefit or are enforceable by, any creditors, contractors, brokers or other third parties.

21.5 Guaranty.

21.5.1 MGM MIRAGE hereby irrevocably and unconditionally guarantees to Owner and its successors and assigns the payment and performance of any and all obligations, performances, indemnities, liabilities and undertakings as and when the same shall be required to be performed, discharged or become due or payable by or on behalf of Manager in accordance with the terms of this Agreement (collectively, the “Guaranteed Obligations”) to the end and intent that MGM MIRAGE shall be liable to Owner at all times and to the same extent and tenor as Operator hereunder for the payment and performance of any and all obligations, performances, indemnities, liabilities and undertakings. No single claim or cause of action with respect to the Guaranteed Obligations shall satisfy or release MGM MIRAGE from the Guaranteed Obligations, and this guaranty shall continue in full force and effect until completion of Operator’s obligations. Upon the satisfaction of all Guaranteed Obligations hereunder, Owner shall provide MGM MIRAGE with an acknowledgement of release and discharge.

(a) The guaranty set forth in this Section 21.5 is a guaranty of payment and performance and not of collection, is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future, including Guaranteed Obligations arising or accruing after bankruptcy of MGM MIRAGE. The liability of MGM MIRAGE under this Section 21.5 shall be direct and immediate and not conditional or contingent on the pursuit of any remedies against Manager or any other person or entity. If there is a failure in the payment or performance of the Guaranteed Obligations, Owner may enforce its rights, powers and remedies hereunder, in any order, without demand or notice of any kind, and without exercising any rights or remedies against Operator or any other person or entity, and all such rights, powers and remedies available to Owner shall be nonexclusive and cumulative of all other available rights, powers and remedies until all Guaranteed Obligations are satisfied. Guarantor waives and releases any right of subrogation against Operator or any other person or entity, and waives any rights to enforce any remedy which MGM MIRAGE may have against Manager. This Section 21.5 shall continue to be effective or shall automatically be revived, reinstated, and restored, as the case may be, if at any time any payment or performance of any Guaranteed Obligations is avoided, rescinded or rendered ineffective or must otherwise be paid, returned or restored by Owner or any other person pursuant to state or federal law, in connection with or as the result of the bankruptcy, insolvency or reorganization of MGM MIRAGE or Operator, all as though such payment or performance had not occurred or been tendered or made, as the case may be. MGM

MIRAGE shall have no authority to revoke the guaranty pursuant to this Section 21.5, but if any such revocation shall be deemed to have occurred by operation of law or otherwise, the provisions of this Section 21.5 shall continue to apply notwithstanding such revocation.

(b) The obligations of MGM MIRAGE pursuant to the guaranty in this Section 21.5, are independent of the obligations of Manager or any other person. Owner may bring action against MGM MIRAGE without bringing action against Operator or any other person and otherwise independently of any other right, power or remedy (each, a “Remedy”) that may be available to Owner at any time. MGM MIRAGE waives any right to require Owner at any time to proceed against Operator or any other person, or otherwise enforce, proceed against or pursue any other Remedy in the Owner’s power.

(i) any present or future Legal Requirements, or orders affecting any Remedy of the Owner;

(ii) any discharge or release of any other guarantor or any impairment or suspension of any Remedy of Owner, whether resulting from any act or omission of the Owner or any other person or by operation of law or otherwise;

(iii) the lack of authority or any bankruptcy, insolvency or reorganization of Operator, any guarantor or any disability or other defense of Operator or any other guarantor;

(iv) any other action by Owner, whether authorized by this Section 21.5 or otherwise, or any omission by Owner or other failure of Owner to pursue, or any delay in pursuing, any other Remedy in Owner’s power;

(v) any defense or benefits that may be derived from any Legal Requirements of the State of California or any other jurisdiction, and all other suretyship defenses it would otherwise have under the Legal Requirements of the State of California or any other jurisdiction;

(vi) all benefits of any statute of limitations affecting MGM MIRAGE’s liability under or the enforcement of the guaranty in this Section 21.5;

(vii) all setoffs and counterclaims;

(viii) promptness, diligence, presentment, demand for performance and protest;

(ix) notice of nonperformance, default, acceleration, protest or dishonor,

(x) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of MGM MIRAGE against Manager; or

(xi) any modification of the Guaranteed Obligations.

(d) MGM MIRAGE hereby waives all benefits that might otherwise be available to MGM MIRAGE under California Civil Code Sections 2787 through 2855, inclusive, and 3433, among other provisions of like effect.

(e) MGM MIRAGE hereby acknowledges that (A) the obligations undertaken by MGM MIRAGE pursuant to the guaranty in this Section 21.5 are complex in nature; and (B) numerous possible defenses to the enforceability of these obligations may presently exist and/or may arise hereafter; and (C) as part of Owner’s consideration for entering into the Agreement, Owner has specifically bargained for the waiver and relinquishment by MGM MIRAGE of all such defenses; and (D) MGM MIRAGE has had the opportunity to seek and receive legal advice from skilled legal counsel in the area of financial transactions of the type contemplated herein. Given all of the above, MGM MIRAGE does hereby represent and confirm to the Owner that MGM MIRAGE is fully informed regarding, and that MGM MIRAGE does thoroughly understand: (i) the nature of all such possible defenses; and (ii) the circumstances under which such defenses may arise; and (iii) the benefits which such defenses might confer upon MGM MIRAGE; and (iv) the legal consequences to MGM MIRAGE of waiving such defenses. MGM MIRAGE acknowledges that MGM MIRAGE makes the guaranty in this Section 21.5 with the intent that such guaranty and all of the informed waivers herein shall each and all be fully enforceable by the Owner, and that the Owner is induced to enter into the Agreement in material reliance upon the presumed full enforceability thereof.

(f) Payment of Expenses. In the event that MGM MIRAGE should breach or fail to timely perform any provisions of this Agreement, MGM MIRAGE shall, within fifteen (15) Business Days of demand by Owner, pay Owner all reasonable out-of-pocket costs and expenses (including court costs and reasonable attorneys’ fees) actually incurred by Owner in the enforcement hereof. In the event MGM MIRAGE fails to pay any such amounts to Owner in the manner and timeframe set forth in this Section 21.5.1(f), such amounts shall accrue interest from and after such payments were due and owing to Owner at the rate of interest set forth in Section 6.5. The covenants contained in this Section 21.5 shall survive the payment and performance of the Guaranteed Obligations.

(g) Modifications. MGM MIRAGE waives any right to object to any renewal, extension, increase, modification, alteration or rearrangement of all or any part of the Guaranteed Obligations. No failure to exercise, and no delay in exercising, on the part of Owner, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Owner hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Agreement nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same, similar or other instances without such notice or demand.

(h) Material Inducement. MGM MIRAGE and Owner acknowledge and agree that this guaranty constitutes a material and continuing inducement of the Owner to

enter into this Agreement and the Concurrent Agreements. MGM MIRAGE and Owner further agree that the provisions of this Section 21.5 are subject to the other rights and remedies of Owner and Operator pursuant to the provisions of this Agreement.

21.6 Further Actions. The Parties hereby agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement.

21.7 Assignment.

21.7.1 Operator’s Assignment. Upon written notice to Owner, Operator shall be entitled at any time, without the consent of Owner to:

(a) cede, assign and delegate its rights and obligations under this Agreement to which it is a Party, to any company which, directly or indirectly, is wholly owned by Operator provided that any such assignee shall agree in writing to be bound to the provisions of this Agreement (“Successor”); provided, however, in the event of any such assignment to a Successor, such assigning Manager shall nevertheless continue to be liable for such Successor’s obligations under this Agreement; and/or

(b) assign its right, conditionally or otherwise, to receive payments under this Agreement.

21.7.2 Owner Assignment. Owner shall be entitled at any time, without the consent of Operator (or if such consent is an inalienable right under any Legal Requirements, then Operator shall grant such consent), to cede, assign and delegate its rights and obligations under (i) in the event of a Transfer of Owner’s Interest in the CityCenter Project, this Agreement and all of the Project Agreements, and (ii) in the event of a Transfer of the Joint Venture’s interest in a Component of the CityCenter Project, the applicable Project Agreement encumber the Component which is the subject of the Transfer. In addition, Owner shall have the right to assign this Agreement and the other Project Agreements to any Mortgagee and/or any lender under any Financing Instrument as additional security for any indebtedness secured (or to be secured) by a Mortgage and/or any Financing Instrument and in connection with such assignment, each Manager, as applicable, hereby agrees to join in executing such form of consent to such assignment as the Mortgagee and/or any lender under any Financing Instrument, in its sole discretion, may require.

21.7.3 Effect of Prohibited Assignment. Any assignment by either Party of this Agreement in violation of the provisions of Section 21.7 shall be null and void at the sole discretion of the Party whose rights pursuant to Section 21.7 were violated upon such assignment.

21.7.4 Assignment Restrictions. Other than as set forth in Section 21.7.1 and Section 21.7.2, neither Party shall cede, assign or delegate its respective rights or obligations under this Agreement without the prior written consent of the other Party, which consent may be withheld in each Party’s sole and absolute discretion.

21.8 Successors and Assigns. Subject to the restrictions on Transfers and encumbrances set forth herein, this Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Whenever in this Agreement a reference is made to any entity or Party, such references shall be deemed to include a reference to the successors and permitted assigns of such entity or Party.

21.9 Waiver. No consent or waiver, express or implied, by any Party to or of any breach or default by the other Party in the performance of its obligations under this Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance by such other Party of the same or any other obligations of such other Party under this Agreement. Failure on the part of either Party to complain of any act or failure to act of the other Party or to declare the other Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights under this Agreement.

21.10 Approval by Owner. In any instance in this Agreement where the approval of Owner is contemplated or required with respect to any matter and a standard is not otherwise set forth in this Agreement, such approval may be given or withheld by Owner in the exercise of its reasonable judgment.

21.11 Severability. If any provisions of this Agreement or the application thereof to any entity or circumstances shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to any other entity or circumstance shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

21.12 Estoppel Certificate. Operator agrees to furnish to Owner and any Mortgagee, from time to time no later than ten (10) Business Days after written request therefor, an estoppel certificate certifying to Owner and any such Mortgagee, to the extent true, (A) that this Agreement is in full force and effect; (B) that all amounts due and owing under this Agreement or otherwise have been paid in full through the last scheduled date of payment; (C) that no modifications or amendments of this Agreement have been made, except as may be disclosed as an attachment to the estoppel certificate or this Agreement; (D) that no default or Event of Default has occurred or is continuing under this Agreement; and (E) such other matters as may be reasonably requested or are by their terms considered to be a typical market request in such context.

21.13 Terminology. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural; and the plural shall include the singular. Titles of Articles, Sections and Exhibits in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. All references in this Agreement to Articles or Sections thereof shall refer to the corresponding Article or Section of this Agreement unless specific reference is made to the articles, sections or subsections of another document or instrument.

21.14 Amendment. No amendment or termination of this Agreement or any provision of this Agreement shall be binding upon any Party to this Agreement unless it is set forth in a written instrument signed by the Party against whom enforcement of the amendment or termination is sought. No waiver by Owner of any breach or default by Manager under this

Agreement shall be effective unless such consent to or waiver of any such breach or default has been given in writing by the DW Member.

21.15 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.

21.16 Interpretation. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any referee, court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated such provision.

21.17 Survival. The covenants contained in this Agreement which, by their terms, require their performance after the expiration or termination of this Agreement shall be enforceable notwithstanding the expiration or other termination of this Agreement.

21.18 Time of the Essence. Time shall be of the essence with respect to all matters under this Agreement.

21.19 Arbitration; Applicable Law; Dispute Resolution.

21.19.1 Governing Law. The interpretation, validity and performance of this Agreement will be governed by and construed in accordance with the procedural and substantive Legal Requirements of the State of California.

21.19.2 Executive Negotiations. In the event of any dispute between the Parties concerning or arising out of this Agreement, the Party seeking the resolution of such dispute shall give written notice to the other Party. Any notice to Owner under this Section 21.19.2 shall be delivered to DW Member. DW Member is authorized to deliver notices on behalf of Owner under this Section 21.19.2, and DW Member shall exclusively represent the interests of Owner under this Section 21.19.2. For a period of ten (10) Business Days following the delivery of such notice, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of the MGM Member (the “Operator Representative”) and Kar ▇▇▇▇ ▇▇▇▇ of the DW Member (the “DW Member Representative”) shall meet in person or by teleconference and negotiate with each other in good faith in an attempt to resolve such dispute. MGM Member may designate a replacement or alternate Operator Representative and DW Member may designate a replacement or alternate DW Member Representative by written notice to the other Party.

21.19.3 Mediation. If, despite such good faith efforts, such dispute has not been fully and finally resolved by the expiration of such ten (10) Business Day period, then Operator or DW Member may require that the Parties participate in a non-binding mediation. Such mediation shall be conducted in Los Angeles, California using a mediator appointed by the Los Angeles, California office of JAMS. Such mediator shall (A) be independent of Operator and the DW Member, (B) not have been engaged by the DW Member, Operator or any of their respective Affiliates within the last three (3) years, and (C) have at least ten (10) years of work or professional experience in the area of expertise relevant to the subject matter of the dispute. Operator and DW Member shall use commercially reasonable, good faith efforts to cause such mediation to occur no later than thirty (30) days after delivery of a notice pursuant to this Section

requesting the mediation of a dispute. Notwithstanding anything in this Agreement to the contrary, the costs and expenses of the mediator appointed pursuant to this Section 21.19.3 and JAMS in connection with such mediation shall be shared equally by DW Member and Operator.

21.19.4 Judicial Reference. DISPUTES THAT HAVE NOT BEEN RESOLVED THROUGH EXECUTIVE NEGOTIATIONS PURSUANT TO SECTION 21.19.2 OF THIS AGREEMENT OR MEDIATION PURSUANT TO SECTION 21.19.3 OF THIS AGREEMENT SHALL BE HEARD AND DETERMINED BY A REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638 ET SEQ. IN EFFECT AS OF THE DATE HEREOF. THE VENUE OF ANY PROCEEDING HEREUNDER SHALL BE IN LOS ANGELES COUNTY, CALIFORNIA (UNLESS CHANGED BY THE WRITTEN AGREEMENT OF THE PARTIES).

THE PARTY (I.E. OPERATOR OR DW MEMBER) SEEKING TO RESOLVE THE DISPUTE SHALL SERVE A COMPLAINT ON THE OTHER PARTY IN THE MANNER PRESCRIBED BY LAW WITHIN FIVE (5) DAYS AFTER THE SERVICE OF THE COMPLAINT OR STATEMENT OF THE COMPLAINT OR STATEMENT OF CLAIM, THE PARTY SEEKING RELIEF SHALL MAKE A WRITTEN REQUEST FOR THE SPECIFIC DESIGNATION OF A REFEREE TO TRY THE DISPUTE. THEREAFTER THE PARTIES SHALL USE THEIR BEST EFFORTS TO AGREE UPON THE SELECTION OF A REFEREE. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN TEN (10) DAYS AFTER A WRITTEN REQUEST TO DO SO BY ANY PARTY, THEN ANY PARTY MAY PETITION THE PRESIDING JUDGE OF THE LOS ANGELES COUNTY SUPERIOR COURT TO APPOINT A REFEREE. THE PRESIDING JUDGE SHALL HAVE THE POWER TO ASSIGN SAID REQUEST TO SUCH JUDGE OF THE SUPERIOR COURT AS THE PRESIDING JUDGE DEEMS APPROPRIATE. FOR THE GUIDANCE OF THE JUDGE MAKING THE APPOINTMENT OF SAID REFEREE, THE PARTIES AGREE THAT THE PERSON SO APPOINTED SHALL BE A RETIRED JUDGE.

THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 640, 641, 642, 643, 644, 645 AND 645.1, SHALL BE APPLICABLE TO DISPUTE RESOLUTION BY A REFEREE HEREUNDER. IN AN EFFORT TO CLARIFY AND AMPLIFY THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 644 AND 645, THE PARTIES AGREE THAT THE REFEREE SHALL DECIDE THE DISPUTE SUBMITTED BY THE PARTIES FOR DECISION IN THE SAME MANNER AS REQUIRED FOR A TRIAL BY COURT AS SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 631.8 AND 632, AND CALIFORNIA RULES OF COURT, RULE 3.1590. THE REFEREE SHALL TRY AND DECIDE THE DISPUTE ACCORDING TO AND BASED ON ALL OF THE SUBSTANTIVE AND PROCEDURAL STATUTORY AND DECISIONAL LAW OF THE STATE OF CALIFORNIA, UNLESS THE PARTIES STIPULATE TO THE CONTRARY. WHEN THE REFEREE HAS DECIDED THE DISPUTE, THE REFEREE SHALL ALSO CAUSE THE PREPARATION OF A JUDGMENT BASED ON SAID DECISION. THE JUDGMENT TO BE ENTERED BY THE SUPERIOR COURT, BASED UPON THE DECISION OF THE REFEREE, SHALL BE APPEALABLE IN THE SAME MANNER AS IF THE JUDGE SIGNING THE JUDGMENT HAD TRIED THE CASE.

THE PARTIES SHALL DILIGENTLY COOPERATE WITH ONE ANOTHER AND THE PERSON(S) APPOINTED TO RESOLVE THE DISPUTE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION OF THE DISPUTE. IF EITHER PARTY REFUSES TO DILIGENTLY COOPERATE, AND THE OTHER PARTY, AFTER FIRST GIVING NOTICE OF ITS INTENT TO RELY ON THE PROVISIONS OF THIS PARAGRAPH, INCURS ADDITIONAL EXPENSES OR ATTORNEYS’ FEES SOLELY AS A RESULT OF SUCH FAILURE TO DILIGENTLY COOPERATE, THE REFEREE MAY AWARD SUCH ADDITIONAL EXPENSES AND ATTORNEYS’ FEES TO THE PARTY GIVING SUCH NOTICE, EVEN IF SUCH PARTY IS NOT THE PREVAILING PARTY IN THE DISPUTE.

THE COST OF THE PROCEEDING SHALL INITIALLY BE BORNE EQUALLY BY THE PARTIES TO THE DISPUTE, BUT THE PREVAILING PARTY IN SUCH PROCEEDINGS SHALL BE ENTITLED TO RECOVER, IN ADDITION TO REASONABLE ATTORNEYS’ FEES AND ALL OTHER COSTS, ITS CONTRIBUTION FOR THE REASONABLE COST OF THE REFEREE AS AN ITEM OF RECOVERABLE COSTS. IF EITHER PARTY REFUSES TO PAY ITS SHARE OF THE COSTS OF THE PROCEEDING, AT THE TIME(S) REQUIRED, THE OTHER PARTY MAY DO SO, IN WHICH EVENT THAT PARTY WILL BE ENTITLED TO RECOVER (OR OFFSET) THE AMOUNT ADVANCED, WITH INTEREST, EVEN IF THAT PARTY IS NOT THE PREVAILING PARTY. THE REFEREE SHALL INCLUDE SUCH COSTS IN HIS JUDGMENT OR AWARD.

21.19.5 Matters Solely Adjudicated Under the Joint Venture Agreement. Notwithstanding anything in this Section 21.19 to the contrary, any actual or alleged breach of the Joint Venture Agreement by DW Member or the MGM Member, or the making of (or the failure to make) any decisions or determinations that constitutes a Major Decision under the Joint Venture Agreement shall be adjudicated and otherwise resolved in accordance with the terms and conditions of the Joint Venture Agreement, not the dispute resolution provisions of this Agreement. The Parties acknowledge and agree that any action or omission of MGM Member or DW Member made under this Agreement shall not constitute a breach of the Joint Venture Agreement by the MGM Member and DW Member, unless such action or omission, if made by the MGM Member or DW Member under the Joint Venture Agreement, would constitute a breach of the Joint Venture Agreement.

21.20 Governing Law and Choice of Forum. This Agreement shall be governed by and construed in accordance with the Legal Requirements of the State of California excluding its conflict of law principles. In the event of any litigation between the Parties concerning or arising out of this Agreement, the Parties hereby consent to the exclusive jurisdiction of the federal and state courts in California.

21.21 Agreement Subject to Nevada Gaming Law and Authorities. Notwithstanding anything to the contrary in this Agreement, this Agreement and all of the terms and conditions contained herein are subject to all Governmental and Regulatory Authority. In the event of any conflict between any Governmental and Regulatory Authority and the terms of this Agreement, the Parties acknowledge, understand and agree that the Governmental and Regulatory Authority and shall govern and the terms of this Agreement shall be amended accordingly to conform thereto.

21.22 Management and Operations Term Sheet. The Parties agree that the “Management and Operations Term Sheet” attached to the Joint Venture Agreement is superseded by the provisions of this Agreement.

21.23 WAIVER OF TRIAL BY JURY. THE PARTIES TO THIS AGREEMENT HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, THE PARTIES HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 21.19 OF THIS AGREEMENT AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION 21.23 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY AND AGREEMENT TO ABIDE BY THE PROCEDURES SET FORTH IN THIS AGREEMENT.

21.24 Limitation of Liability.

21.24.1 The provisions of this Agreement to the contrary notwithstanding, the Parties acknowledge and agree with and for the benefit of Owner and the DW Member that the liability of Owner to make any additional payment or contribution of money at any time and from time to time pursuant to this Agreement and for any purpose pursuant to this Agreement is expressly limited to the interest of Owner in the Project. Such limitation of liability is further subject to the agreement that in no event shall Owner, the DW Member or Operator have at any time any right, duty or obligation to contribute to or for the benefit of the Project any capital or other amounts unless specifically required by and authorized by the terms of the Joint Venture Agreement and any actions of Owner’s members taken in accordance with the Joint Venture Agreement.

(a) Without in any way limiting the provisions of this Section 21.24.1, the Parties acknowledge that in the event there is a default or an alleged default by Manager or MGM MIRAGE under the arrangements contemplated by this Agreement, or if any Party has any Claim arising from the arrangements contemplated in this Agreement, no Party shall commence any lawsuit or otherwise seek to impose any liability whatsoever against Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Tracinda Corporation, a Nevada corporation, and any other corporation or entity controlled by Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (other than MGM MIRAGE and its subsidiaries) or any principals of MGM MIRAGE or the Affiliates of such principals (the “MGM MIRAGE Restricted Affiliates”). The Parties hereby further agree that none of the MGM MIRAGE Restricted Affiliates shall have any liability whatsoever with respect to this Agreement. The Parties hereby further agree that they shall not permit or cause the Owner to assess a Claim or impose any liability against any MGM MIRAGE Restricted Affiliate, either collectively or individually, as to any matter or thing arising out of or relating to this Agreement. In addition,

the Parties agree that none of the MGM MIRAGE Restricted Affiliates, individually or collectively, are a Party to this Agreement or liable for any alleged breach or default of this Agreement by Operator or MGM MIRAGE. It is expressly understood and agreed that this provision shall have no force and effect with respect to any document or agreement as to which Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or Tracinda Corporation is a party with the DW Member or Affiliates of the DW Member, except as set forth in such other agreement.

(b) Without in any way limiting the provisions of this Section 21.24.1, the Parties acknowledge that in the event there is a default or an alleged default by DW Member under the arrangements contemplated by this Agreement, or if any Party has any Claim arising from the arrangements contemplated in this Agreement, no Party shall commence any lawsuit or otherwise seek to impose any liability whatsoever against either the Government of Dubai, the United Arab Emirates, any corporation or entity controlled by the Government of Dubai or the United Arab Emirates (other than DW Member and its subsidiaries) or any principals of DW Member or the Affiliates of such principals (the “Dubai World Restricted Affiliates”). The Parties hereby further agree that none of the Dubai World Restricted Affiliates shall have any liability whatsoever with respect to this Agreement. The Parties hereby further agree that they shall not permit or cause Owner to assess a Claim or impose any liability against any Dubai World Restricted Affiliate, either collectively or individually, as to any matter or thing arising out of or relating to this Agreement. In addition, the Parties agree that none of the Dubai World Restricted Affiliates, individually or collectively, are a Party to this Agreement or liable for any alleged breach or default of this Agreement by DW Member or its Affiliates.

21.25 Use of Affiliates by Manager. In fulfilling its obligations under this Agreement, Operator may, subject to the Joint Venture Agreement, use the services of one or more of its Affiliates. If any Affiliate of Operator performs services that Operator is required to provide under this Agreement, Operator shall be ultimately responsible to Owner for its Affiliate’s performance. In addition, the compensation and other terms and conditions of any such Affiliate transaction shall be no less favorable to Owner than those that Operator knows could reasonably be obtained at the time from an unrelated party providing comparable goods or services, and it is expressly understood and agreed that Owner shall not enter into any contracts with an Affiliate of Operator other than at such Affiliate’s cost. Notwithstanding the foregoing, in the event Owner provides reasonable proof to Operator that the cost of a third party’s services is less than the cost charged by Operator’s Affiliate for the same or comparable service to be provided by such Affiliate, Owner shall be entitled to engage such third party in lieu of Operator’s Affiliate.

21.26 Publicity. Owner and Operator shall coordinate with one another on all press releases relating to those matters material to the operation and management of the Condo-Hotel.

21.27 Waivers. No consent or waiver, express or implied, by any Party to or of any breach or default by the other Party in the performance of its obligations under this Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default in the performance by such other Party of the same or any other obligations of such other Party under this Agreement. Failure on the part of either Party to complain of any act or failure to act of the other Party or to declare the other Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights under this Agreement. No consent or waiver by Owner to or of any breach or default by Manager in the performance of its

obligations under this Agreement shall be effective unless such consent to or waiver of any such breach or default has been given in writing by DW Member.

21.28 Other Agreements. Except to the extent as may now or hereafter be specifically provided, nothing contained in this Agreement will be deemed to modify any other agreement between Owner and Operator with respect to the Project or any other property executed and delivered contemporaneously with this Agreement (the “Concurrent Agreements”). This Agreement contains the entire agreement between Owner and Operator regarding the management of the Condo-Hotel and Owner’s and Operator’s rights, duties and obligations related thereto and supersedes all prior oral or written agreements, understandings, representations and covenants, other than the Concurrent Agreements and the Joint Venture Agreement.

21.29 Periods of Time. Whenever any determination is to be made or action is to be taken on a date specified in this Agreement, if such date falls on a day that is not a Business Day, then that date will be extended to the next day which is a Business Day.

21.30 Attorney’s Fees and Other Costs. The Parties to this Agreement will bear their own attorneys’ fees in relation to negotiating and drafting this Agreement. Subject to the provisions of Section 21.19 of this Agreement, if Owner or Operator engages in litigation to construe, interpret or enforce this Agreement, the prevailing Party will have the right to indemnity by the non-prevailing Party for an amount equal to the prevailing Party’s reasonable attorneys’ fees, court costs and expenses arising therefrom.

21.31 Electronic Signatures. Signatures to this Agreement transmitted by facsimile or by electronic mail shall be valid and effective to bind the Party so signing. Each Party agrees to promptly deliver an execution original to this Agreement with its actual signature to the other Party, but a failure to do so shall not affect the enforceability of this Agreement, it being expressly agreed that each Party to this Agreement shall be bound by its own telecopied or scanned signature and shall accept the telecopied or scanned signature of the other Party to this Agreement.

21.32 Relationship of Owner to Operator. Subject to the fiduciary duties owed by Manager to Owner pursuant to this Agreement and the Joint Venture Agreement, in carrying out its duties and obligations hereunder, the relationship of Operator and any of its Affiliates providing the services to Owner will be that of an agent. In every instance where Operator executes any agreement or document on behalf of Owner (pursuant to its rights set forth in this Agreement), Operator shall do so in its capacity as an agent of Owner and shall make such designation evident in any such agreement.

21.33 Compliance with Securities Laws.

21.33.1 Owner hereby agrees that, in connection with its marketing and sale of the Residential Units, it shall comply with the Securities Act of 1933, the Securities Exchange Act of 1934, any state “blue sky laws” and/or any other laws and regulations promulgated by the United States Securities and Exchange Commission or any other federal or state agency regulating the sale, registration and/or other handling of securities (collectively, the “Federal and State

Securities Laws”) so as to avoid classifying the sale of a Residential Unit as a security. In addition, it is the intent of the Parties that in no event shall the Unit Owner’s participation in, or any aspect of, the Rental Program constitute a security or violate any Federal and State Securities Laws and to ensure that the Rental Program and the Rental Program Agreement are in compliance with all other applicable laws, regulations, terms and conditions imposed by any court or regulatory, administrative and/or other agency of the federal government of the United States of America, the State of Nevada or any other state located within the United States of America. Should Operator become aware of any non-compliance with Federal State and Securities Laws or any other applicable Legal Requirements, Operator shall be obligated to immediately notify Owner of such non-compliance.

21.33.2 Notwithstanding anything to the contrary set forth in this Agreement, Operator acknowledges that pursuant to the Federal and State Securities Laws, Unit Owners must have the right and option to use a third party rental agent for the rental of their Residential Units and, as a result, any Unit Owner may rent its Residential Unit with a third party rental agent.

21.34 Notices.

21.34.1 Other than as provided in Section 21.34.2, all notices or other communications required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if delivered personally to the Party to whom notice is given, on the next Business Day if sent by confirmed facsimile transmission or on the date of actual delivery if sent by overnight commercial courier or by first class mail, registered or certified, with postage prepaid and properly addressed to the Party at its address set forth below, or at any other address that any Party may from time to time designate by written notice to the others:

If to Operator:

Vdara Condo Hotel, LLC

c/o: Mirage Resorts, Incorporated

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: Assistant General Counsel

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

With a copy to:

Project CC, LLC

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: Vice President and General Counsel

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

and

With a copy to:

Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP

▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

If to Developer:

CityCenter Vdara Development, LLC

c/o Project CC, LLC

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: Assistant General Counsel

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

With a copy to:

Project CC, LLC

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: Vice President and General Counsel

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

and

With a copy to:

Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP

▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

and

With a copy to:

INFINITY WORLD DEVELOPMENT CORP

c/o: Dubai World

Emirates Towers, ▇▇▇▇▇ ▇▇

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇

P. O. ▇▇▇ ▇▇▇▇▇

▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇

Attention: Mr. Kar ▇▇▇▇ ▇▇▇▇

Facsimile: 011-971-4-361-2530

and

With a copy to:

INFINITY WORLD DEVELOPMENT CORP

c/o: Dubai World

Emirates Towers, ▇▇▇▇▇ ▇▇

▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇

P. O. ▇▇▇ ▇▇▇▇▇

▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇

Attention: DW Representative

Facsimile: 011-971-4-361-2530

and

With a copy to:

Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

If to MGM MIRAGE:

MGM MIRAGE

▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇

Attention: General Counsel

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

With a copy to:

Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP

▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.

Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

21.34.2 Addresses for Reporting Submissions and Property-Level Information. With respect to the reports and other information, materials or documents prepared by Operator in accordance with the provisions of this Agreement which are created or produced for the purpose of providing operating or financial reporting information for the

Condo-Hotel, Operator shall provide copies of all such items to the DW Representative at the address provided above:

[SIGNATURES ON FOLLOWING PAGE]

IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the Effective Date.


DEVELOPER:

CITYCENTER VDARA DEVELOPMENT, LLC, a Nevada limited liability company

By:		/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Representative


OPERATOR:

VDARA CONDO HOTEL, LLC, a Nevada limited liability company

By:		/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary

With respect to its obligations pursuant to ARTICLE 12,

ARTICLE 17, Section 3.1.3, Section 3.4, Section 21.5 and Section 3.1.3 only;

provided, however, that the provisions of Section 21.5 are not in

any manner limited by specific reference to the foregoing provisions.

MGM MIRAGE:

MGM MIRAGE,

a Delaware corporation



By:		/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Assistant General Counsel and Assistant Secretary

EXHIBIT A

MASTER GLOSSARY OF DEFINITIONS

“A la Carte Services” shall have the meaning ascribed to such term in Section 5.2.2.

“Accounting Month” shall mean a full calendar month (or partial calendar month if at the beginning or end of the Term).

“Affiliate” shall mean (a) any person directly or indirectly controlling, controlled by or under common control with such other person; and (b) any member of the immediate family (e.g., grandmother, grandfather, father, mother, son, daughter, brother, sister, aunt, uncle, niece, nephew, grandson or granddaughter) of any of the foregoing persons; provided, however, that none of Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Tracinda Corporation, any other corporation or entity controlled by Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (other than MGM MIRAGE or its subsidiaries), the Government of Dubai, the United Arab Emirates or any corporation or entity controlled by the Government of Dubai or the United Arab Emirates (other than DW Member or its subsidiaries) shall be deemed an Affiliate of any Operator, MGM MIRAGE, Owner, or DW Member. For purposes hereof, the term “control” shall mean the possession directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, either alone or in combination with any one or more persons.

“Agreement” shall have the meaning ascribed to such term the opening paragraph of this Agreement.

“Alteration” shall mean any alteration, change, renovation or refurbishing, improvement or rebuilding of, or addition to, the Improvements (as hereinafter defined) or any part thereof, structural or otherwise.

“Annual Statement” shall have the meaning ascribed to such term in Section 11.4.

“Articles” shall mean the Articles of Incorporation of the Condominium Association as filed or to be filed in the office of the Secretary of State of the State of Nevada, as such Articles may be amended from time to time.

“Association Management Agreement” shall have the meaning ascribed to such term in Section 5.4.

“Base Management Fee” shall have the meaning ascribed to such term in Section 6.1.

“Board of Directors” shall have the meaning ascribed to such term in the Joint Venture Agreement.

“Business Days” means each day other than a Saturday, Sunday or any day observed by the Federal, State of Nevada or local government in Las Vegas, Nevada as a legal holiday.

“Bylaws” shall mean the Bylaws of the Condominium Association, as such Bylaws may be amended from time to time.

“Capital Budget” shall mean the capital budget showing expenditures required for Routine Capital Improvements and Capital Improvements to the Condo-Hotel for each Operating Year and the purchases of Equipment to be funded out of the Reserve Fund, Working Capital, or other sources of funds, as applicable.

“Capital Improvements” shall mean all Alterations whose costs are not charged to repairs and maintenance in accordance with GAAP and consistent with the financial statements of, and formats for, wholly owned properties of MGM MIRAGE.

“Casualty” shall mean any fire, flood or other act of God or casualty that results in damage or destruction to the Condo-Hotel or any component thereof.

“CCL” shall have the meaning ascribed to such term as set forth in the Recitals.

“Central Plant” shall mean the on-site central plant to be governed by a central plant agreement that will be executed in the future.

“Centralized Services” shall have the meaning ascribed to such term in Section 12.1.

“Certified Financial Statements” shall mean the annual financial statements of Owner audited by the Company Accountant for each applicable Operating Year in accordance with the Joint Venture Agreement, together with the opinion of the Company Accountant thereon based on such audit.

“CityCenter Project” shall mean, collectively, the Condo-Hotel, the Veer Component, the Mandarin Component, the ▇▇▇▇▇▇ Component, the Crystals Component, and the Other Project Component.

“Claim” shall mean any and all claims, demands, damages, judgments, costs, losses, penalties, fines, liens, suits, and expenses and liabilities, including, without limitation, attorneys’ fees and costs and expenses incident thereto.

“Common Expenses” shall have the meaning ascribed to such term in Section 1.30 of the Declaration.

“Compensation” shall mean all compensation and other benefits for Personnel, including, without limitation, salaries, usual and customary fringe benefits, including health, life and disability insurance, pension and profit sharing plans, stock options, stock appreciation rights and other equity compensation plans, payroll taxes and any other remuneration or expenses of such Personnel, prorated, with respect to Other Personnel, to take into account the portion of such individual’s time devoted or allocated to providing services to the Condo-Hotel.

“Complimentaries” shall mean any goods or services provided to customers free of charge, at a discounted rate or in the form of a rebate or credit. Such goods or services may include, for example, rooms, food and beverage, spa services and retail merchandise. Complimentaries may be provided to customers pursuant to a discretionary incentive program, targeted to either past, current or potential customers. Complimentaries may be provided to customers pursuant to a nondiscretionary incentive program, such as a loyalty program.

“Component” shall mean any of the Mandarin Component, Condo-Hotel, ▇▇▇▇▇▇ Component, Vdara Component, Crystals Component, Veer Component or Other Project Component, in each case, in its entirety taken as a whole.

“Concurrent Agreements” shall have the meaning ascribed to such term as set forth in Section 21.28.

“Condemnation” shall have the meaning ascribed to such term as set forth in Section 18.2.

“Condominium Association” shall mean the association of the owners of the condominium units formed pursuant to the Condominium Documents.

“Condo-Hotel” shall have the meaning ascribed to such term as set forth in the Recitals.

“Condominium Documents” shall mean the Declaration, the Bylaws, the Articles, any rules and regulations established pursuant to the Declaration and any other documents that govern the organization or operation of the Condominium Association or the operation of the Condo-Hotel, as may be amended from time to time.

“CPI” shall mean that certain index published by the United States Department of Labor, Bureau of Labor Statistics, known as the Consumer Price Index For All Urban Consumers, (1982 - 1984 - 100) for the market area that includes the Condo-Hotel. When adjusting an amount for a change in the CPI, the amount in question shall be determined by multiplying such amount by a fraction, the numerator of which is the CPI as of the date the adjustment is to occur, and the denominator of which is the CPI applicable to such amount as of the date the base period at issue commenced. If such index does not exist on any adjustment date in the same format as referred to in this paragraph, Owner shall substitute in lieu thereof an index reasonably comparable to such index referred to above which is then published by the Bureau of Labor Statistics, or successor or similar governmental agency, or if no governmental agency then publishes an index, Owner shall substitute therefor any comparable index then published by a reputable private organization.

“CPI Annual Percentage Increase” shall have the meaning ascribed to such term in Section 9.1.4(c).

“Crystals Component” shall mean the retail and entertainment facility located within the CityCenter Project.

“Crystals Retail Management Agreement” shall mean that certain Retail Management Agreement dated as of November 15, 2007 by and among The Crystals at CityCenter Management, LLC, a Nevada limited liability company, Project CC and MGM MIRAGE, a Delaware corporation, as amended from time to time by the parties thereto in writing.

“Cure Right” shall have the meaning ascribed to such term in Section 16.2.

“Daily Transient Rental Fee” shall have the meaning ascribed to such term in Section 9.5(b)(ii) of the Declaration.

“Declaration” shall have the meaning ascribed to such term in the Recitals.

“Developer” shall have the meaning ascribed to such term in the introductory paragraph.

“Development Management Agreement” shall mean that certain Development Management Agreement dated November 15, 2007 by and between Development Manager and Owner (as defined in the Hotel and Casino Management Agreement).

“Development Manager” shall mean Project CC.

“Dubai World Restricted Affiliates” shall have the meaning ascribed to such term in Section 21.24.1(b).

“DW Member” shall mean Infinity World Development Corp, a Nevada corporation (as successor-in-interest to Dubai World, a Dubai, United Arab Emirates government decree entity), its successors and assigns.

“DW Member Representative” shall have the meaning ascribed to such term in Section 21.19.2.

“DW Representative” shall have the meaning ascribed to such term in Section 7.1.5.

“EBITDAM” means Gross Revenue less (i) Operating Expenses and (ii) the Base Management Fee.

“Effective Date” shall mean November 15, 2007.

“Environmental Law” shall mean any current or future governmental rule, regulation, law, regional or international treaty and/or other enactment now or hereafter in effect and applicable to the CityCenter Project or any portion thereof or to activities carried on thereat or with respect thereto (whether of a national, regional, state, international or local government, agency or instrumentality), regulating, relating to, or imposing liability or standards of conduct concerning the use, generation, treatment, storage, disposal or abatement of Hazardous Materials.

“Equipment” shall mean a collective term for the Furniture, Fixtures, Structural Repairs and Equipment and the Operating Equipment.

“Event of Default” shall have the meaning ascribed to such term as set forth in Section 17.1.1.

“Federal and State Securities Laws” shall have the meaning ascribed to such term as set forth in Section 21.33.1.

“Financing Instrument” shall mean any agreement(s) and instrument(s) relating to any debt proceeds that may finance the development and/or operation of the Condo-Hotel (or any component thereof) from time to time, whether or not secured by a Mortgage, together with all promissory notes, loan agreements and other documents relating thereto, as the same may exist from time to time pursuant to the terms of this Agreement.

“Force Majeure Event” shall mean any one or more of the following events or circumstances that, alone or in combination, directly or indirectly adversely affects the operation of the Condo-Hotel or any component thereof: fire, earthquake, storm or other casualty; strikes, lockouts, or other labor interruptions; war, rebellion, riots, acts of terrorism, or other civil unrest; acts of God or of any government; disruption to local, national or international transport services; shortages of materials, epidemics, quarantine or any other public health restrictions or public health advisories; or any other similar event beyond the Parties’ reasonable control (but excluding causes which can be controlled by the expenditure of money in accordance with usual business practices and the Project Budgets). Changes in market conditions, without another event or circumstance affecting the Condo-Hotel (or any component thereof) as enumerated above, shall not constitute a Force Majeure Event.

“Furniture, Fixtures, Structural Repairs and Equipment” shall mean all furniture, furnishings, fixtures and equipment required for the operation of the Condo-Hotel at the Operating Standard, including, without limitation: carpeting and other floor coverings, draperies, fabrics, paintings, works of art, bedspreads, and television sets; office furniture, fixtures, equipment and machines, including safes, cash registers, and accounting, duplicating and communication machines and equipment; guest room and lobby furniture; specialized hotel and restaurant equipment, such as equipment required for the operation of kitchens, laundries, the front desk, dry cleaning facilities, bars and cocktail lounges, and special lighting and other equipment, vehicles, material handling equipment, and cleaning equipment and all other fixtures, equipment, apparatus and personal property needed for such purpose, other than Operating Equipment, Operating Supplies, and fixtures attached to and forming part of the Improvements and structural repairs

“GAAP” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been generally accepted by a major accounting firms in the United States. Any accounting terms not otherwise defined herein shall be construed and applied according to such generally accepted accounting principles.

“Gaming” shall mean any game played with cards, dice, equipment or any mechanical, electromechanical or electronic device or machine for money, property, checks, markers or any representative of value, including, without limiting the generality of the foregoing, faro, monte, roulette, keno, bingo, fan-tan, twenty-one, blackjack, seven-and-a-half, big injun, klondike, craps, poker, ▇▇▇▇▇-a-luck, Chinese ▇▇▇▇▇-a-luck (dai shu), wheel of fortune, chemin de fer, baccarat, pai gow, beat the banker, panguingui, slot machine, any banking or percentage game, race and sport activities or any other game or device approved by the Nevada Gaming Authorities.

“Governmental and Regulatory Authority” shall mean any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision.

“Gross Revenue” shall mean, (a) with respect to the Condo-Hotel, all revenue and income derived directly from the operation of the Condo-Hotel and properly attributable to such

period, including rentals or other payments from tenants lessees, licensees or concessionaires (but not including their gross receipts); (b) parking fees derived from parking operations; (c) revenues from providing Hotel Related Services, A la Carte Services, Transient Services and other services; (d) one hundred percent (100%) of the revenues generated by Participating Units prior to the distribution of any amounts to Owner and to Unit Owners, whether on a cash basis or credit, determined in accordance with GAAP; and (e) the Daily Transient Rental Fee and the Monthly Transient Rental Fee actually paid pursuant to the Declaration, but expressly excluding the following: (i) sales, occupancy, value added, use, excise taxes and similar taxes imposed by a Governmental and Regulatory Authority and collected directly from patrons or guests, or as a part of the sales price of any goods, services, or displays, including gross receipts, admission, cabaret and similar taxes; (ii) receipts from the financing, sale or other disposition of capital assets and other items not in the ordinary course of the Condo-Hotel’s operations and income derived from securities and other property acquired and held for investment; (iii) receipts from any Condemnation, but only to the extent that such amounts are specifically identified as compensation for alterations or physical damage to the Condo-Hotel; (iv) proceeds of any insurance, including the proceeds of any business interruption insurance; (v) rebates, discounts or credits for any goods or services provided by Operator of the Condo-Hotel (provided that charge and credit card commissions shall not reduce Gross Revenue, but shall constitute an Operating Expense); (vi) any ▇▇▇▇-up charged by wholesalers renting Residential Units and not paid to Owner; (vii) to the extent not received by Owner, any and all lease and related payments received by Unit Owners of Residential Units that are leased to third parties for more than three hundred sixty-five (365) days; (viii) to the extent not received by Owner, any and all rental or other consideration received by Unit Owners of Residential Units that are not in the Rental Program or that are bartered or otherwise used for non-rental purposes during any owner occupancy period under the Rental Program; (ix) to the extent not received by Owner, any and all reservation or similar fees that are paid to any third party rental agent by any Unit Owner renting their Residential Unit through a third party rental agent; (x) HOA Fees or any other amounts paid by Unit Owners to third parties including property taxes, insurance premiums, etc.; and (xi) deemed revenue attributable to occupancy of Participating Units by any person at rates lower than published rates or free of charge or attributable to dining by any person at the restaurants or lounges located at the Condo-Hotel at a discounted rate or free of charge, except in either case to the extent the cost of any such complimentary items or any portion thereof are actually reimbursed by any Affiliate of MGM Member and/or MGM MIRAGE.

“Guaranteed Obligations” shall have the meaning ascribed to such term in Section 21.5.1.

“▇▇▇▇▇▇ Component” shall mean the ▇▇▇▇▇▇ hotel and residences.

“Hazardous Materials” shall mean any substance or material containing one or more of the following: hazardous material, hazardous waste, hazardous substance, regulated substance, petroleum, pollutant, contaminant or asbestos, as such terms are defined in any applicable Environmental Law, in such concentration(s) or amount(s) as may require clean-up or removal, or which could reasonably be expected to present a risk of harm to guests, invitees or Personnel.

“HOA Fees” shall mean those amounts collected as homeowner association dues by the Condominium Association from Unit Owners as set forth in the Declaration.

“Hotel and Casino Management Agreement” shall mean that certain Hotel and Casino Operations and Hotel Assets Management Agreement, of even date herewith, by and among CityCenter Hotel & Casino, LLC, a Nevada limited liability company and Project CC (and, as they may be designated now or in the future, each manager), MGM MIRAGE, and Owner.

“Hotel Related Services” shall have the meaning ascribed to such term in Section 3.11 of the Declaration.

“Hotel Unit” shall have the meaning ascribed to such term in the Declaration.

“Hotel Unit Owner” shall have the meaning ascribed to such term in the Declaration.

“House Accounts” shall mean any house accounts established by Operator in addition to the Operating Account and the Reserve Fund as established by Operator to maintain ▇▇▇▇▇ cash funds at the Condo-Hotel.

“Impositions” shall mean all taxes (including but not limited to all hotel occupancy, personal property, sales, use and real property taxes), assessments, water, sewer or other rents, rates and charges, levies, license fees, permit fees, inspection fees, and any other authorization fees and charges, which at any time may be assessed, levied, confirmed or imposed on or with respect to the Condo-Hotel (including any portion or department thereof) or the furnishing, equipping, use or operation thereof.

“Improvements” shall mean all improvements which currently exist or in the future exist on the Condo-Hotel including, if any, (i) the building containing the Residential Units; (ii) restaurant, laundry and other commercial space, meeting rooms and public rooms; (iii) back and front offices; (iv) storage and service areas; and (v) all Equipment attached to, forming a part of and necessary for the operation of such building, structures or improvements (including, without limitation, ventilating, plumbing, air conditioning, electrical, refrigeration and acoustical systems).

“Infrastructure” shall mean the structures, buildings and other improvements except any structure, building or improvement comprising the Condo-Hotel.

“Incentive Management Fee” has the meaning ascribed to such term in Section 6.1.

“Insurance Requirements” shall mean all terms of each insurance policy and all orders, rules, regulations and other requirements of the National Board of Fire Underwriters applicable to the Condo-Hotel and/or each component thereof, or the construction, furnishing, equipping or operation thereof, excluding recommendations of the insurance carriers.

“Inter-Company Agreement” shall mean that certain Amended and Restated Agreement made and entered into as of November 14, 2007, by and among BELLAGIO, LLC, a Nevada limited liability company, RESTAURANT VENTURES OF NEVADA, LLC, a Nevada limited liability company, as successor in interest to RESTAURANT VENTURES OF NEVADA, INC., TREASURE ISLAND CORP., a Nevada corporation, VICTORIA PARTNERS, a Nevada general partnership doing business as Monte Carlo Resort & Casino, MIRAGE RESORTS, INCORPORATED, a Nevada corporation, for itself and as successor in interest to

BOARDWALK CASINO, INC. and THE ▇▇▇▇▇ ▇▇▇▇ COMPANIES, Project CC, CCL, CTTYCENTER BOUTIQUE RESIDENTIAL DEVELOPMENT, LLC, a Nevada limited liability company, CITYCENTER ▇▇▇▇▇▇ DEVELOPMENT, LLC, a Nevada limited liability company, Developer, and CITYCENTER VEER TOWERS DEVELOPMENT, LLC, a Nevada limited liability company, formerly known as CITYCENTER VEER WEST DEVELOPMENT, LLC and as successor by merger to CTTYCENTER VEER EAST DEVELOPMENT, LLC.

“Joint Venture” shall mean CityCenter Holdings, LLC, a Delaware limited liability company.

“Joint Venture Agreement” shall mean that certain Limited Liability Company Agreement of CityCenter Holdings LLC dated as of August 21, 2007, by and between MGM Member and DW Member, as amended by that certain Amendment No. 1 to the Joint Venture Agreement dated as of November 15, 2007 as the same may be further modified, amended and restated from time to time in writing.

“Key Personnel” shall mean the Condo-Hotel’s (i) general manager, (ii) director of food and beverage, (iii) director of sales and marketing, and (iv) director of finance (or controller).

“Legal Requirements” shall mean all laws (including Environmental Laws), statutes, ordinances, orders, rules, regulations, permits, licenses, authorizations, directions and requirements of all Governmental and Regulatory Authority (including, without limitation, all appropriate beverage control authorities) and public utilities which now or hereafter may be applicable to the Condo-Hotel or any component thereof or the furnishing, equipping or operation thereof.

“Major Decision” shall have the meaning ascribed to such term in the Joint Venture Agreement.

“Managing Member” shall have the meaning ascribed to such term in the Joint Venture Agreement.

“Mandarin Component” shall mean the 400-room Mandarin Oriental hotel and residences.

“Material Event of Default” shall have the meaning ascribed to such term as set forth in Section 17.3.3.

“Members” shall mean, collectively, the MGM Member and the DW Member.

“MGM Guest Data” shall mean all guest or customer contact information (e.g., addresses, phone numbers, facsimile numbers and email addresses), customer profiles, histories, preferences and similar information in any database of Operator or its Affiliates, including information gathered through MGM MIRAGE’s guest loyalty program, or otherwise through the websites and databases operated or maintained by MGM MIRAGE in connection with Operator Group Hotels or any facility associated with Operator Group Hotels (such as restaurants and spas), but specifically excluding the CityCenter Guest Data.

“MGM Member” shall mean Project CC, in its role as Managing Member, its successors and assigns.

“MGM MIRAGE” shall mean MGM MIRAGE, a Delaware corporation.

“MGM MIRAGE Restricted Affiliates” shall have the meaning ascribed to such term in Section 21.24.1(b).

“Monthly Statements” has the meaning ascribed to such term in Section 11.3.

“Monthly Transient Rental Fee” shall have the meaning ascribed to such term in Section 9.5(b)(i) of the Declaration.

“Mortgage” shall mean any real estate, leasehold, chattel mortgage, security agreement, mortgage, security deed or similar document or instrument encumbering the Condo-Hotel (or any component thereof) or any interest therein, together with all promissory notes, loan agreements or other documents relating thereto.

“Mortgagee” shall mean any holder or beneficiary of a Mortgage.

“Nevada Gaming Authorities” shall mean, collectively, the Nevada Gaming Commission, the Nevada State Gaming Control Board, and all other state and local regulatory and licensing bodies with authority over gaming activities and devices in the State of Nevada.

“Opening Date” shall mean the date on which construction of the Condo-Hotel is substantially completed (with the exception of punch list items) and shall be open for business to the general public.

“Operating Account” shall mean the bank account established for the Condo-Hotel in accordance with this Agreement.

“Operating Equipment” shall mean all chinaware, glassware, linens, silverware, flatware and hollowware, uniforms, kitchen utensils, and other items of a similar nature required for the operations of the Condo-Hotel in accordance with the Operating Standard.

“Operating Expenses” means with respect to the Condo-Hotel, all ordinary and necessary expenses incurred in the operation of the Condo-Hotel as determined in accordance with GAAP, excluding all (i) income taxes; (ii) any depreciation and amortization; (iii) Pre-Opening expenses; (iv) asset write-downs; (v) impairments; (vi) costs incurred in connection with any litigation pertaining to the sales and marketing of the Residential Units or any Casualty or Condemnation; and (vii) any interest expense.

“Operating Fee” shall have the meaning ascribed to such term in Section 6.1.

“Operating Standard” shall mean, subject to the limitations of the Project Budget and the availability of funds, the standards according to which the Condo-Hotel (and any component thereof) is to be operated, maintained, furnished, equipped and refurbished, that is, as reasonably deemed necessary by Operator (a) with respect to the Condo-Hotel, at a level of service and

quality generally considered to be “world class luxury level,” (b) in accordance with the terms of all Financing Instruments, including, but not limited to, any Mortgage, (c) in accordance with, subject to Section 9.1.5, the applicable approved Project Budget, and (d) in a manner reasonably expected to: (i) protect and preserve the assets that comprise the Condo-Hotel (and any component thereof), and (ii) maximize the profitability and value of both the Condo-Hotel as a whole, and any component thereof, over the ensuing five (5) year period.

“Operating Supplies” shall mean the following items and inventories thereof: food and beverage and other immediately consumable items used in the operation of a condo-hotel, such as fuel, soap, light bulbs, mechanical stores, cleaning material, matches, stationary, paper supplies, and similar items.

“Operating Year” shall mean a full calendar year, except that the first Operating Year for the Condo-Hotel shall commence on the Opening Date, and the last Operating Year shall end on the expiration of the Term, unless sooner terminated pursuant to the provisions of this Agreement.

“Operator” shall have the meaning ascribed to such term in the opening paragraph of this Agreement.

“Operator Group Hotels” shall mean all hotels in the United States that are owned or managed by Operator and/or its Affiliates.

“Operator Representative” shall have the meaning ascribed to such term as set forth in Section 21.19.2.

“Other Personnel” shall mean all individuals, other than Project Personnel and such executive officers of MGM MIRAGE who are subject to reporting obligations under Section 16(a) of the Securities Exchange Act of 1934, performing services in the name of the Condo-Hotel (or any component thereof), regardless of the identity of the employer of such individuals.

“Other Project Component” shall mean the fire station, people mover station, garage, Infrastructure, and the Central Plant, collectively.

“Owner” shall mean a to-be-formed entity (which will likely be the Hotel Unit Owner) to which this Agreement shall be assigned by Developer. To the extent there are any future “Owners,” each such “Owner” shall be required to sign a joinder agreement in the form attached hereto as Exhibit C.

“Participating Unit” shall mean a Residential Unit that is subjected to the terms and conditions of a Rental Program Agreement.

“Parties” or “Party” shall have the respective meanings ascribed to such terms in the introductory paragraph of this Agreement.

“Performance Test Failure” shall have the meaning ascribed to such term in Section 16.1.

“Performance Test Period” shall have the meaning ascribed to such term in Section 16.1.

“Personnel” shall mean the Project Personnel and Other Personnel.

“Pre-Opening Budget” shall have the meaning ascribed to such term as set forth in Section 4.1.

“Pre-Opening Expenses” shall have the meaning ascribed to such term as set forth in Section 4.2.

“Pre-Opening Services” shall mean such pre-opening services for the Condo-Hotel set forth in Section 4.1.

“Project Agreements” shall mean this Agreement, the Hotel and Casino Management Agreement, and the Crystals Retail Management Agreement.

“Project Budget” shall mean the various operating budgets and Capital Budgets prepared for the Condo-Hotel in accordance with this Agreement and as required under the Condominium Documents.

“Project CC” shall mean Project CC, LLC, a Nevada limited liability company.

“Project Personnel” means all individuals dedicated to the Condo-Hotel (or any component thereof) on a full time basis and performing services in the name of the Condo-Hotel (or any component thereof), regardless of the identity of the employer of such individuals, including, but not limited to, the Key Personnel.

“Proprietary Information” shall mean all intellectual property relating to Operator or any of its Affiliates, the business affairs of a Operator or any of its Affiliates, or any hotel, condo-hotel, resort, restaurant, café, club or other similar operation, spa or similar facility (or amenity thereto) which a Operator or any of its Affiliates owns, leases, operates or franchises, including, without limitation: (i) Trademarks; (ii) proprietary software (including proprietary applications and interface software specifically acquired, developed or modified in whole or in part by or for Operator or its Affiliates) used in the operation of the Condo-Hotel; (iii) MGM Guest Data; (iv) creative material relating to the operating and design standards of any hotel or resort owned, leased, operated or franchised by Operator or any of its Affiliates, including artwork, graphics, collateral, promotions, designs, layouts and prototypes; and (v) all trade secrets and copyrightable or patentable subject matter (including, by way of example, operational manuals, procedures, methods, techniques, ideas and know-how) developed, acquired, or licensed by Operator or any of its Affiliates in the operation of the Condo-Hotel or in any other hotel owned, leased, operated or franchised by Operator or any of its Affiliates, and all intellectual property rights relating to any of the foregoing.

“Purchasing Program” shall mean programs made by Owner and/or its Affiliates for the purchase of certain Equipment or Operating Equipment from time to time to the Operator Group Hotels (whether on a national, regional, mandatory, optional or other basis).

“Quarterly Period” shall mean a three-month period ending on March 31, June 30, September 30, and December 31 of each Operating Year.

“Quarterly Statements” shall have the meaning ascribed to such term in Section 11.3.

“Reimbursable Expenses” has the meaning ascribed to such term in Section 6.3.

“Reimbursable Services” has the meaning ascribed to such term in Section 12.3.

“Remedy” shall have the meaning ascribed to such term in Section 21.5.1(b).

“Rental Program” shall have the meaning ascribed to such term in Section 5.3.1.

“Rental Program Agreement” shall mean a rental program agreement entered into by a Unit Owner with an Affiliate of Owner for the rental of a Residential Unit in accordance with the Rental Program.

“Replacement Reserve Amount” shall have the meaning ascribed to such term in Section 10.2.1.

“Reporting Period Statements” shall have the meaning ascribed to such term in Section 11.3.

“Reserve Fund” shall have the meaning ascribed to such term in the Declaration.

“Residential Units” shall have the meaning ascribed to such term in the Recitals.

“Resort Hotel and Casino” shall mean, collectively, the approximately four thousand (4000) room resort and hotel located within the CityCenter Project and all related facilities.

“Routine Capital Improvements” shall mean (i) Alteration to the Equipment and (ii) certain routine repairs and maintenance to the Condo-Hotel which are normally capitalized and classified as “capital expenditures” under GAAP (e.g., interior repainting, resurfacing interior walls, floors and ceilings and resurfacing parking areas), but expressly excluding Capital Improvements.

“Shared Components” shall have the meaning ascribed to such term in Section 1.83 of the Declaration.

“Shared Components Reserve Fund” shall have the meaning ascribed to such term in Section 10.2.1.

“Successor” shall have the meaning ascribed to such term in Section 21.7.1(a).

“Term” has the meaning ascribed to such term in Section 2.1.

“Third-Party Operated Areas” shall mean any areas of the Condo-Hotel operated by Third-Party Operators.

“Third-Party Operators” shall mean third parties that operate certain areas of the Condo-Hotel not otherwise operated by Operator.

“Trademarks” shall mean the trademarks, trade names, service marks and copyrights owned or controlled by Operator or any of its Affiliates, and any related marks, logos or symbols, together with the right to use any and all slogans, derivations, trade secrets, know-how and trade dress and all other proprietary rights associated with such names, marks and slogans, owned or controlled by Operator or its Affiliates.

“Transient Services” shall mean those services contemplated in the Declaration to be provided in exchange for the Daily Transient Rental Fee (i.e., housekeeping and linen and other in-room services that are commonly furnished in a full-service hotel) and the Monthly Transient Rental Fee (i.e., providing additional staff and hotel services, general marketing benefiting the Condo-Hotel and the Residential Units, obtaining and maintaining Condo-Hotel licenses and permits, operating and maintaining a management software system and accounts receivable services).

“Transfer” shall mean any direct or indirect sale, assignment, transfer, exchange, conveyance, leasing or other disposition or transfer, for value or otherwise, voluntary or involuntary, by operation of law or otherwise.

“Uncontrollable Expenses” shall mean those certain expenses, including real estate and personal property taxes, utilities, insurance premiums, license, permit fees and charges provided for in contracts and leases entered into pursuant to this Agreement, or prices or fees charged by third parties for goods and services, in each case, that are not within the ability of Operator to control.

“Unit Owners” shall have the meaning ascribed to such term in the Recitals.

“Vdara Condo Hotel Holdings” shall have the meaning ascribed to such term as set forth in the Recitals.

“Veer Component” shall mean the twin luxury condominium towers located within the CityCenter Project.

“Working Capital” shall mean, with respect to the Condo-Hotel, funds which are reasonably necessary for the day-to-day operation of the Condo-Hotel’s business in accordance with this Agreement, provided, however, that Owner’s obligations to provide Working Capital shall be limited in accordance with Section 5.5.2.

EXHIBIT B

OTHER CORPORATE ALLOCATIONS

Call Center

Community Affairs/Diversity

Design Center

Energy Management

Graphic Arts

Human Resources (Corp.)

Internal Audit

Internet/Leisure Sales (Corp.)

Loyalty Marketing

Public Relations

Purchasing (Corp.)

Retail (Corp.)

Risk Management (Corp.)

Security (Corp.)

Shared Services

AMENDMENT NO. 1

CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT

This Amendment No. 1 to Condo-Hotel Operations Management Agreement (this “Amendment”) is dated and entered into as of April 29, 2009 (the “Amendment Effective Date”) by and among VDARA CONDO HOTEL, LLC, a Nevada limited liability company (“Operator”), and CITYCENTER VDARA DEVELOPMENT, LLC, a Nevada limited liability company (“Developer”, on behalf of Owner). Operator and Owner are sometimes referred to collectively in this Amendment as the “Parties” and individually as a “Party”.

RECITALS

WHEREAS, Operator and Developer (on behalf of Owner) entered into that certain Condo-Hotel Operations Management Agreement (the “Agreement”) dated November 15, 2007, with respect to the subject matters set forth therein; and

WHEREAS, the Parties desire to amend the Agreement as set forth in this Amendment.

NOW, THEREFORE, in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:

Section 1 Defined Terms. Each capitalized term used and not defined herein shall have the meaning assigned to it in the Agreement (as amended hereby).

Section 2 Amendment to the Agreement. Effective as of the Amendment Effective Date, the Agreement is hereby amended as follows:

2.1 Project Budget: Section 9.1.1 is hereby deleted in its entirety and replaced with the following:

“9.1.1 Preparation of Proposed Project Budget. No later than ninety (90) days prior to the Opening Date, Operator shall prepare and submit to Owner the Project Budget for the Condo-Hotel with respect to the first Operating Year for Owner’s review and written approval. Thereafter, at least ninety (90) days prior to the beginning of each subsequent Operating Year, Operator shall prepare and submit to Owner the Project Budget for such Operating Year for the Condo-Hotel for Owner’s review and written approval. Operator shall act reasonably and exercise prudent business judgment in preparing each proposed Project Budget”

2.2 Books and Records: The following sentence is hereby added to the end of Section 11.1: “All books and records of the Condo-Hotel shall be located onsite at the Condo-Hotel or at another location which affords reasonable access to all Parties to this Agreement.”

2.3 Events of Default:

(a) The introductory clause of Section 17.1.1 is hereby deleted and replaced in its entirety with the following:

“17.1.1 Events of Default on the Part of Either Party. The following shall constitute an event of default under this Agreement (each such event being referred to herein as an “Event of Default”) but each Party acknowledges and agrees that the other Party will not be in default or breach of this Agreement to the extent that such default or breach arises from an action or omission of the other Party or any of its Affiliates (including without limitation MGM MIRAGE) and, with respect to Owner, to the extent that such default or breach arises regarding a matter that is within the control of Manager or its Affiliates (including without limitation MGM MIRAGE):”

(b) Section 17.1.1(c) is hereby deleted and replaced in its entirety with the following:

“(c) Insolvency. (i) The institution by a Party of proceedings under any federal or state law for the relief of debtors wherein such Party is seeking relief as debtor, (ii) a general assignment by a Party for the benefit of creditors, (iii) the institution by a Party of a proceeding for relief under the United States Bankruptcy Code, (iv) the institution against a Party of a proceeding under the United States Bankruptcy Code, which proceeding is not dismissed, stayed or discharged within 60 days after the filing thereof or, if stayed, which stay is thereafter lifted without a contemporaneous discharge or dismissal of such proceeding, (v) the admission by a Party in writing of its inability to pay its debts as they mature or (vi) the attachment, execution or other judicial seizure of all or any substantial part of the membership interests, stock, partnership interests or other equity interests in a Party which remains undismissed or undischarged for a period of 15 days after the levy thereof, if such attachment, execution or other judicial seizure would reasonably be expected to have a material adverse effect upon the performance by such Party of its obligations under this Agreement; provided, however, that any such attachment, execution or seizure shall not constitute an Event of Default if such Party posts a bond sufficient to fully satisfy the amount of such claim or judgment within 15 days after the levy thereof and the Party’s membership interests are thereby released from the lien of such attachment (each an “Event of Bankruptcy”); provided, however, that notwithstanding the foregoing or any provision of Delaware law to the contrary, none of the Events of Bankruptcy enumerated above shall be deemed an Event of Default hereunder until such time as: (a) a chapter 11 trustee or an examiner with expanded powers is appointed to exercise rights otherwise vested in the Party’s estate or in the Party as debtor in possession, (b) the Event of Bankruptcy is a chapter 7 case in which an order for relief is entered, or a chapter 11 case that has been converted to chapter 7 by entry of an order directing such conversion, (c) following an Event of Bankruptcy, the Party does not perform its obligations

hereunder, or (d) following an Event of Bankruptcy, the Required Lenders under the Construction Facility declare an event of default thereunder.”

2.4 Termination Rights: Section 17.4.2 is hereby deleted and replaced in its entirety with the following:

“17.4.2 At any time during the Term, Operator or its Affiliates cease, collectively, to own directly or indirectly at least twenty-five (25%) of the equity of Owner;”.

2.5 Force Majeure Event: Operator shall make good faith, reasonable efforts to notify Owner and the DW Member Representative as soon as Operator becomes aware of an Emergency Situation (which must be within twenty-four (24) hours following the Emergency Situation). Operator will provide immediate notice of a Force Majeure Event to Owner and the DW Member Representative specifying the circumstances of the Force Majeure Event, providing any supporting documentation as may be available to evidence such circumstances, and shall periodically update Owner and the DW Member Representative on the progress of the Force Majeure Event.

2.6 Executive Negotiations: ▇▇▇▇▇▇▇ Grounds is hereby designated as the DW Member Representation in place of Kar ▇▇▇▇ ▇▇▇▇.

2.7 Replacement of Notice Party: ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby replaces Kar ▇▇▇▇ ▇▇▇▇ as a notice party and copies of written notices required to be delivered to the attention of Kar ▇▇▇▇ ▇▇▇▇ on behalf of Infinity World Development Corp shall be delivered to the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇.

2.8 Definitions: Exhibit A to the Agreement is hereby amended as follows:

(a) The definition of “Project Budget” is amended to read in its entirety as follows:

““Project Budget” shall mean the various operating budgets and Capital Budgets prepared for the Condo-Hotel in accordance with this Agreement, as approved by Owner pursuant to Section 9.1.2 above.”

(b) A new defined term “Emergency Situation” is hereby added to Exhibit A to the Agreement and shall read as follows:

““Emergency Situation” shall mean a bona fide emergency situation which creates an imminent risk to life, safety or significant damage to the CityCenter Project.”

Section 3 Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Parties under the Agreement. This Amendment shall apply and be effective, only with respect to the provisions of the Agreement specifically referred to herein. On and after the Amendment Effective Date, each reference in the Agreement to “this

Agreement”, “hereunder”, “hereof”, “herein” or words of like import, shall be deemed a reference to the Agreement as amended hereby.

Section 4 Governing Law. This Amendment shall be governed by and construed in accordance with the Legal Requirements of the State of California excluding its conflict of laws principles. In the event of any litigation between the Parties concerning or arising out of this Agreement, the Parties hereby consent to the exclusive jurisdiction of the federal and state courts in California.

Section 5 Counterparts. This Amendment may be executed in two or more counterparts (including by facsimile or similar means of electronic communication), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signature page follows]

IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the Amendment Effective Date.


DEVELOPER:

CITYCENTER VDARA DEVELOPMENT, LLC, a Nevada limited liability company

By:		/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:		▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:		Assistant Secretary


OPERATOR:

VDARA CONDO HOTEL, LLC, a Nevada limited liability company

By:		/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:		▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:		Assistant Secretary


With respect to its obligations pursuant to ARTICLE 12, ARTICLE 17, Section 3.1.3, Section 3.4, Section 21.5 and Section 3.1.3 of the Agreement only; provided, however, that the provisions of Section 21.5 are not in any manner limited by specific reference to the foregoing provisions.

MGM MIRAGE:

MGM MIRAGE, a Delaware corporation

By:		/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:		▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:		Senior Vice President, Assistant General Counsel and Assistant Secretary

[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE

CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT)

EX-10.13 46 d233905dex1013.htm OPERATIONS MANAGEMENT AGREEMENT BETWEEN VDARA CONDO HOTEL, LLC AND CITYCENTER CONDO-HOTEL OPERATIONS MANAGEMENT AGREEMENT AMONG VDARA CONDO HOTEL, LLC AND CITYCENTER VDARA DEVELOPMENT, LLC FOR CITYCENTER LAS VEGAS,...

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