EXHIBIT 10
COLLATERAL AGENT AND INTERCREDITOR AGREEMENT
This Collateral Agent and Intercreditor Agreement (this "Agreement") dated as of
February 13, 2002, is entered into by and among U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent hereunder (the "Collateral Agent"); MGM MIRAGE, a Delaware
corporation formerly known as MGM Grand, Inc. (the "Company"); MIRAGE RESORTS
INCORPORATED, a Nevada corporation ("Mirage"), which is as of the date hereof a
wholly-owned subsidiary of the Company; those subsidiaries of the Company listed
on the signature pages hereof or which may hereafter become a party hereto
pursuant to Section 13 (each of which is a "Restricted Subsidiary" as defined
below); and each of the following persons (each, in the capacities described
below (together with the representatives of any future Additional Qualified
Obligations), a "Creditor Representative"):
(A) Bank of America, N.A., in its capacity as Administrative Agent under
the Multi-Year Loan Agreement and the Short Term Loan Agreement
referred to below;
(B) JPMorgan Chase Bank (successor in interest to PNC Bank, National
Association), in its capacity as trustee for the holders of the
Company 6.95% Notes Due 2005, the Mirage 6.625% Notes Due 2005, and
the Mirage 6.75% Notes Due 2008 referred to below;
(C) BNY Western Trust Company, as successor to U.S. Trust Company,
National Association (formerly known as U.S. Trust Company of
California, N.A.), in its capacity as trustee for the holders of the
Company 6 7/8% Notes Due 2008 and the Company 8 1/2% Notes Due 2010
referred to below;
(D) U.S. Bank National Association (formerly known as Firstar Bank of
Minnesota, N.A.), in its capacity as trustee for the holders of the
Mirage 7.25% Notes Due 2006 referred to below; and
(E) Xxxxx Fargo Bank Northwest, National Association, (successor to First
Security Bank, National Association), in its capacity as trustee for
the holders of the Mirage 6.75% Notes Due 2007 and the Mirage 7.25%
Debentures Due 2017 referred to below.
The parties hereto hereby agree with reference to the following facts:
RECITALS
A. Pursuant to the Credit Documents described herein, the Company, Mirage, and
certain of their Restricted Subsidiaries have incurred indebtedness for
borrowed money, or have guaranteed such indebtedness incurred by the
Company, Mirage or another Restricted Subsidiary.
B. Certain of the Credit Documents require that the Company and the Restricted
Subsidiaries grant Liens in substantially all of their real, mixed and
personal properties to secure their respective obligations under the Credit
Documents.
C. Substantially concurrently herewith, at the request of the Company, the
Company and its Restricted Subsidiaries shall enter into the Collateral
Documents to evidence the granting of the Liens in the Collateral to the
Collateral Agent for the mutual benefit of the Creditors.
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D. The Creditor Representatives party hereto as of the date hereof desire to
provide that the Liens contemplated hereby shall, to the extent of the
Qualified Obligations, be equal, ratable and pari passu and to make
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provision for future Qualified Obligations incurred by the Company to have
the benefit of such Liens on the same equal, ratable and pari passu basis.
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E. The Company and its Restricted Subsidiaries may hereafter become entitled
to the release of the Collateral subject to this Agreement, and further
provision is made herein for the effectuation of such a release.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. As used herein, the following terms have the meanings set
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forth after each:
"Aircraft Mortgages" means the Aircraft Chattel Mortgages of even date
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herewith executed by certain of the Restricted Subsidiaries and the
Collateral Agent, each as at any time amended, modified, supplemented,
renewed or extended.
"Collateral" means the property of the Company and the Restricted
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Subsidiaries which is at any time subject to the Collateral Documents.
"Collateral Agent" means U.S. Bank National Association, its
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successors, assigns and replacements.
"Collateral Documents" means each of the documents described in
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Section 2, and each other instrument, document or agreement which
hereafter grants a Lien to the Collateral Agent for the benefit of the
holders of the Qualified Obligations and the Excess Obligations, in
each case as at any time amended, modified, supplemented, renewed or
extended.
"Company 6 7/8% Notes Due 2008" means the Company's aggregate
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$200,000,000 6 7/8% Senior Collateralized Notes due 2008, issued
pursuant to an Indenture dated as of February 6, 1998, among MGM
Grand, Inc. (to which the Company is successor), the guarantors named
therein, and BNY Western Trust Company, as successor to U.S. Trust
Company, National Association (formerly known as U.S. Trust Company of
California, N.A.), as trustee, as amended, including all supplemental
indentures thereto.
"Company 6.95% Notes Due 2005" means the Company's aggregate
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$300,000,000 6.95% Senior Collateralized Notes due 2005, issued
pursuant to an Indenture dated as of February 2, 1998, among MGM
Grand, Inc. (to which the Company is successor), the guarantors named
therein, and JPMorgan Chase Bank, as successor in interest to PNC
Bank, National Association, as trustee, as amended, including all
supplemental indentures thereto.
"Company 8 1/2% Notes Due 2010" means the Company's aggregate
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$850,000,000 8 1/2% Senior Notes due 2010, issued pursuant to an
Indenture dated as of September 15, 2000 among the Company, the
guarantors named therein, and BNY Western Trust Company, as successor
to U.S. Trust Company, National Association (formerly known as U.S.
Trust Company of California, N.A.), as trustee, as amended, including
all supplemental indentures thereto.
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"Consolidated Net Tangible Assets" has the definition given to such
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term in the Indenture dated as of February 6, 1998, among MGM Grand,
Inc. (to which the Company is successor), the guarantors named
therein, and BNY Western Trust Company, as successor to U.S. Trust
Company, National Association (formerly known as U.S. Trust Company of
California, N.A.), as trustee, as amended, through the date hereof,
including all supplemental indentures thereto.
"Credit Documents" means, in respect of each Creditor Group, the
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instruments, documents and agreements evidencing the obligations and
indebtedness of the Company, Mirage and the other Restricted
Subsidiaries described in the definition of "Creditor Group", and in
any event includes the Existing Credit Documents.
"Creditor" means each person which is the holder of any indebtedness
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or other obligation represented by Credit Documents representing
Qualified Obligations or Excess Obligations, including (a) Bank of
America, as Administrative Agent under the Multi-Year Loan Agreement
and the Short Term Loan Agreement, together with the "Banks," "Issuing
Bank," "Swing Line Bank" and counterparties to secured "Swap
Agreements" referenced in such loan agreements or from time to time
party thereto, and those persons entitled to indemnification of any
character under such loan agreements, and (b) the trustees under each
of the Notes referred to in the definition of "Creditor Groups" and
the holders of such Notes.
"Creditor Group" means any of each of the following groups:
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(a) the Administrative Agent and the Banks under the Multi-Year
Loan Agreement;
(b) the Administrative Agent and the Banks under the Short Term
Loan Agreement;
(c) the trustee for and the holders of the Company 6 7/8% Notes
Due 2008;
(d) the trustee for and the holders of the Company 6.95% Notes
Due 2005;
(e) the trustee for and the holders of the Company 8 1/2% Notes
Due 2010;
(f) the trustee for and the holders of the Mirage 6.625% Notes
Due 2005;
(g) the trustee for and the holders of the Mirage 6.75% Notes
Due 2007;
(h) the trustee for and the holders of the Mirage 6.75% Notes
Due 2008;
(i) the trustee for and the holders of the Mirage 7.25% Notes
Due 2006;
(j) the trustee for and the holders of the Mirage 7.25%
Debentures Due 2017; and
(k) the Creditor Representative for and the holders of each other
class of senior indebtedness of the Company which is hereafter
registered as Additional Qualified Obligations pursuant to
Section 4 hereof; in each case together with any trustee,
administrative agent or other creditor representative thereof,
and
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any issuing banks, swap counterparties, indemnitees, or other
persons entitled to the benefit of the Collateral described in
the relevant Credit Documents.
"Detroit" means MGM Grand Detroit, LLC, a Delaware limited liability
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company which is the owner of the Detroit Project, its successors and
permitted assigns.
"Detroit Project" means the design, development and construction, by
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the Company and its Restricted Subsidiaries (whether individually,
through Detroit, or in concert with one or more partners or joint
venturers) of a permanent hotel, casino and entertainment complex in
Detroit, Michigan or its environs (in addition to the currently
operating casino located at 0000 Xxxx X. Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx).
"Enforcement Order" has the meaning set forth in Section 8(a) of this
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Agreement.
"Excess Obligations" means, as of any date of determination, that
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portion of the Obligations, if any, which are not Qualified
Obligations as of that date.
"Existing Credit Documents" means (a) the Multi-Year Loan Agreement
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and the "Loan Documents" (as such term is defined in the Multi-Year
Loan Agreement), (b) the Short Term Loan Agreement and the Loan
Documents, (c) the Notes of the Company and Mirage described in the
definition of "Creditor Group" and the related indentures and
supplemental indentures, and (d) all guarantees of such obligations
issued by the Company or any of its Restricted Subsidiaries, including
the Existing Guarantees and the New Guarantees.
"Existing Guarantees" means guaranties or guarantees of the
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Obligations entered into by certain subsidiaries of the Company dated
as of a date prior to this Agreement, including the following
guaranties or guarantees by the subsidiaries of the Company named
therein, in each case as at any time amended, modified, supplemented,
renewed or extended:
(a) Amended and Restated Subsidiary Guaranty dated as of April
6, 2001 with respect to the Short Term Loan Agreement;
(b) Subsidiary Guaranty dated as of May 31, 2000 with respect to
the Multi-Year Loan Agreement;
(c) Guarantee dated as of May 31, 2000 with respect to the Company 6
7/8% Notes Due 2008, and the guarantee obligations contained in
the Indenture dated as of February 6, 1998 with respect to the
Company 6 7/8% Notes Due 2008;
(d) Guarantee dated as of May 31, 2000 with respect to the Company
6.95% Notes Due 2005, and the guarantee obligations contained in
the Indenture dated as of February 2, 1998 with respect to the
Company 6.95% Notes Due 2005;
(e) The guarantee obligations contained in the Indenture dated
as of September 15, 2000 with respect to the Company 8 1/2%
Notes Due 2010;
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(f) Guarantee dated as of May 31, 2000 with respect to the Mirage
6.625% Notes Due 2005 and the Mirage 6.75% Notes Due 2008;
(g) Guarantee dated as of May 31, 2000 with respect to the Mirage
7.25% Notes Due 2006; and
(h) Guarantee dated as of May 31, 2000 with respect to the Mirage
6.75% Notes Due 2007 and the Mirage 7.25% Debentures Due 2017.
"Gaming Boards" means, collectively, (a) the Nevada Gaming Commission,
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(b) the Nevada State Gaming Control Board, (c) the New Jersey Casino
Control Commission, (d) the New Jersey Division of Gaming Enforcement,
(e) the Mississippi Gaming Commission, (f) the Michigan Gaming Control
Board and (g) any other Government Agency that holds regulatory,
licensing or permit authority over gambling, gaming or casino
activities conducted by Company or any Restricted Subsidiary within
its jurisdiction.
"Gaming Laws" means all laws, and rules or regulations promulgated
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thereunder, pursuant to which any Gaming Board holds regulatory,
licensing or permit authority over gambling, gaming or casino
activities conducted by Company or any Restricted Subsidiary within
its jurisdiction.
"Government Agency" means (a) any international, foreign, federal,
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state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body
or (c) any court or administrative tribunal of competent jurisdiction.
"Majority Representatives" means, as of each date of determination,
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those Creditor Representatives representing (a) prior to any Trigger
Event, a majority in interest of the principal amount of the Qualified
Obligations (including for this purpose the amount of any unfunded
credit commitments which are Qualified Obligations), and (b) following
any Trigger Event, a majority of the principal amount of the
outstanding Qualified Obligations.
"Material Real Property" means the parcels of real property (and the
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improvements located thereon) described on Exhibit A to this
Agreement.
"Mirage 6.625% Notes Due 2005" means Mirage's aggregate $200,000,000
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6.625% Notes due 2005, issued pursuant to an Indenture dated as of
February 4, 1998, between Mirage and JPMorgan Chase Bank, as successor
in interest to PNC Bank, National Association, as amended, including
all supplemental indentures thereto.
"Mirage 6.75% Notes Due 2007" means Mirage's aggregate $200,000,000
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6.75% Notes due 2007, issued pursuant to an Indenture dated as of
August 1, 1997, between Mirage and Xxxxx Fargo Bank Northwest,
National Association, as successor to First Security Bank, National
Association, as trustee, as amended, including all supplemental
indentures thereto.
"Mirage 6.75% Notes Due 2008" means Mirage's aggregate $200,000,000
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6.75% Notes due 2008, issued pursuant to an Indenture dated as of
February 4, 1998,
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between Mirage and JPMorgan Chase Bank, as successor in interest to
PNC Bank, National Association, as trustee, as amended, including all
supplemental indentures thereto.
"Mirage 7.25% Notes Due 2006" means Mirage's aggregate $250,000,000
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7.25% Notes due 2006, issued pursuant to an Indenture dated as of
October 15, 1996, between Mirage and U.S. Bank National Association
(formerly known as Firstar Bank of Minnesota, N.A.), as trustee, as
amended, including all supplemental indentures thereto.
"Mirage 7.25% Debentures Due 2017" means Mirage's aggregate
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$100,000,000 7.25% Debentures due August 1, 2017, issued pursuant to
an Indenture dated as of August 1, 1997, between Mirage and Xxxxx
Fargo Bank Northwest, National Association, as successor to First
Security Bank, National Association, as trustee, as amended, including
all supplemental indentures thereto.
"Mortgages" means each mortgage or deed of trust executed by the
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Company or its Restricted Subsidiaries with respect to any Material
Real Property on the date hereof, and each other mortgage or deed of
trust hereafter delivered to the Collateral Agent to secure the New
Guarantees.
"Multi-Year Loan Agreement" means the Second Amended and Restated Loan
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Agreement dated as of April 10, 2000 among the Company, as Borrower,
MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as Co-
Borrowers, the Banks referred to therein, and Bank of America, N.A.,
as Administrative Agent, as at any time amended, modified,
supplemented, renewed or extended.
"New Guarantee" means a guaranty of the Obligations executed by each
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person owning Material Real Property as of the date hereof in favor of
the Collateral Agent for the benefit of the Creditors (ratably in
accordance with Section 3 hereof), and each similar guaranty hereafter
executed by the Company or any Restricted Subsidiary, in each case as
at any time amended, modified, supplemented, renewed or extended.
"Obligations" means, collectively, all Obligations which are owed to
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any Creditors under the Credit Documents.
"Pledge Agreement" means a Pledge Agreement of even date herewith
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among the Company, the Restricted Subsidiaries and the Collateral
Agent, as at any time amended, modified, supplemented, renewed or
extended.
"Qualified Obligations" means:
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(a) in the case of each Creditor Group holding Term Credit
Obligations, the principal amount of the Obligations owed to that
Creditor Group as of the delivery of a Trigger Notice, together
with interest, fees, premiums, indemnification rights, and
reasonable costs and expenses allocable to such principal,
whether arising before or after a Trigger Event, provided that in
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the case of Term Credit Obligations existing as of the date
hereof, the principal amount thereof shall not exceed the
principal amount of the related Obligation described in the
definitions hereof; and
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(b) in the case of each Creditor Group holding Revolving Credit
Obligations, all principal Obligations which are outstanding
prior to the delivery of a Trigger Notice (including the amount
of any letters of credit and related reimbursement obligations or
other contingent obligations issued under the related Credit
Documents) and any currency or interest rate hedging arrangements
entered into with any member of the Creditor Group or its
affiliates (to the extent entitled to the benefit of the relevant
Credit Documents) together with interest, fees, premiums,
indemnification rights and reasonable costs and expenses
allocable to such principal, whether arising before or after a
Trigger Event.
"Register" means a register, in the form of Exhibit B hereto,
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maintained by the Collateral Agent in which the Collateral Agent shall
enter the name, address, telephone number, facsimile number, and
representative capacity, if any of each Creditor Representative
together with the original principal amount of the Qualified
Obligations owed to the related Creditor Group and, in the case of
Revolving Credit Obligations, the commitment amount under the related
Credit Documents.
"Restricted Subsidiary" has the meaning set forth in the Multi-Year
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Loan Agreement, as amended, modified, renewed, extended, refunded,
replaced or refinanced from time to time and, in the event that the
Multi-Year Loan Facility is terminated, shall have the meaning given
to the term in the Indenture dated as of February 2, 1998 with respect
to the Company 6.95% Notes Due 2005. With respect to the Company 8
1/2% Notes Due 2010, Restricted Subsidiary, when used herein, shall
refer to each "Subsidiary" (as defined in the Company 8 1/2% Notes Due
2010) that is not an "Excluded Subsidiary" (as defined in the Company
8 1/2% Notes Due 2010).
"Revolving Credit Obligations" means all obligations and indebtedness
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of the Company or any of its Restricted Subsidiaries under (a) the
Multi-Year Loan Agreement and the Loan Documents described therein,
(b) the Short Term Loan Agreement and the related Loan Documents
described therein, and (c) any other Credit Documents hereafter
entitled to the benefits of this Agreement pursuant to Section 4 under
which revolving credit facilities are provided to the Company or any
of its Restricted Subsidiaries.
"Security Agreement" means a Security Agreement of even date herewith
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among the Company, the Restricted Subsidiaries and the Collateral
Agent, as at any time amended, modified, supplemented, renewed or
extended.
"Short Term Loan Agreement" means the Amended and Restated 364-Day
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Loan Agreement dated as of April 6, 2001 among the Company, as
Borrower, MGM Grand Atlantic City, Inc. and MGM Grand Detroit, LLC, as
Co-Borrowers, the Banks referred to therein, and Bank of America,
N.A., as Administrative Agent, as at any time amended, modified,
supplemented, renewed or extended.
"Ship Mortgages" means the First Preferred Ship Mortgages of even date
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herewith relating to the Beau Rivage casino complex.
"Term Credit Obligations" means all obligations and indebtedness of
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the Company and its Restricted Subsidiaries, the holders of which are
entitled to the benefits of this Agreement and which are not Revolving
Credit Obligations.
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"Trademark Assignment" means a Trademark Security Interest Assignment
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of even date herewith among the Company, the Restricted Subsidiaries
and the Collateral Agent, as at any time amended, modified,
supplemented, renewed or extended.
"Trigger Event" means any of the following:
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(a) the occurrence of any default under any Credit Document
consisting of a bankruptcy, insolvency or similar event with
respect to the Company or any Restricted Subsidiary having assets
in excess of $100,000,000, provided that in the case of the
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commencement of any involuntary bankruptcy with respect to the
Company or any such Restricted Subsidiary, no Trigger Event shall
be deemed to have occurred unless and until the shortest period
of grace provided for in the then applicable Credit Documents has
expired; or
(b) the actual acceleration of any Obligations by the holder or
holders thereof or their representatives.
"Trigger Notice" means a written notice from any Creditor
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Representative to the Collateral Agent that a Trigger Event has
occurred.
Unless otherwise indicated, capitalized terms used but not defined in this
Agreement shall have the meanings given to them in the Short Term Loan
Agreement, as in effect on the date of this Agreement.
2. Granting of the Liens. Concurrently with the execution and delivery of
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this Agreement, the Company and each Restricted Subsidiary shall execute
and deliver to the Collateral Agent the following documents, each of which
shall be in form and substance acceptable to the Creditor Representatives:
(a) In the case of each Restricted Subsidiary owning Material Real
Property, a New Guarantee of the Obligations owed to each
Creditor Group;
(b) Mortgages executed by each of the Restricted Subsidiaries with
respect to the Material Real Property existing as of the date
hereof, in each case securing the New Guarantees referred to in
clause (a) hereof;
(c) a Security Agreement executed by the Company and each of its
Restricted Subsidiaries to secure the Obligations owed to each
Creditor Group;
(d) a Trademark Assignment executed by the Company and each of its
Restricted Subsidiaries to secure the Obligations owed to each
Creditor Group;
(e) a Pledge Agreement executed by the Company and each of its
Restricted Subsidiaries to secure the Obligations owed to each
Creditor Group;
(f) In the case of each Restricted Subsidiary owning aircraft,
Aircraft Mortgages to secure the Obligations owed to each
Creditor Group; and
(g) In the case of each Restricted Subsidiary owning barges, Ship
Mortgages to secure the Obligations owed to each Creditor Group.
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The Collateral Agent is hereby authorized and directed to execute the
foregoing Collateral Documents, each instrument, document and agreement
contemplated thereby to which the Collateral Agent is a named party, and
each other instrument, document or agreement with is incidental or
reasonably related thereto. On the effective date hereof, the Company and
the Restricted Subsidiaries shall deliver to the Collateral Agent the
certificates representing all of the issued and outstanding capital stock
or other equity securities of each Restricted Subsidiary, provided that (y)
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the Company and the Restricted Subsidiaries shall not be obligated to
deliver any such certificates representing the capital stock of any gaming
licensee to the extent that to do so would violate any applicable law,
rule, regulation or order (provided that the Company and the relevant
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Restricted Subsidiaries shall diligently pursue any necessary approvals of
governmental agencies to such deliveries), and (z) any such certificates
representing the capital stock of any person holding a Nevada gaming
license shall be maintained in the State of Nevada.
The Company and each Restricted Subsidiary shall take all required actions
to file and maintain any financing statements or other filings which are
required or reasonably desirable to perfect and maintain perfected the
Liens granted to the Collateral Agent, shall provide the Collateral Agent
with written evidence of its compliance with this paragraph (which written
evidence shall provide that it may be relied upon by all Creditor
Representatives), and, not later than thirty days after the end of the
fiscal year of the Company, shall provide the Collateral Agent and Creditor
Representatives with a certificate certifying compliance with this
paragraph, an opinion of counsel for the Company and any other documents as
may be required under the applicable Credit Documents. The Company and
each Restricted Subsidiary hereby authorize the Collateral Agent to file
and maintain any financing statements which are necessary or desirable to
maintain perfected Liens granted pursuant to the Collateral Documents
referred to in this Section, and to record any such Collateral Documents in
all relevant filing offices, all at the expense of the Company and the
Restricted Subsidiaries.
The Company and the Restricted Subsidiaries represent and warrant that, as
of the date hereof, the aggregate amount of the balances in the deposit
accounts of the Company and the Restricted Subsidiaries does not exceed an
amount equal to 15% of Consolidated Net Tangible Assets. Not later than
thirty days after the end of the fiscal year of the Company, the Company
and each Restricted Subsidiary shall provide the Collateral Agent with a
certificate (which may be relied upon by all Creditor Representatives)
certifying that the representation and warrants set forth in this paragraph
is true and correct on and as of such date.
The Company and its Restricted Subsidiaries agree that they shall promptly
provide to the Collateral Agent insurance certificates and lenders loss
payable endorsements with respect to appropriate casualty insurance
covering the Collateral, indicating the Collateral Agent as additional
insured and loss payee, and the Collateral Agent shall promptly forward
copies of such certificates and endorsements to each of the Creditor
Representatives.
Nothing in this Agreement or any Collateral Document shall impose any
liability upon Detroit or its properties for an amount in excess of that
portion of the Obligations which are or have been used, directly or
indirectly, to finance the design, development, construction or operation
of the Detroit Project or which are or have been actually borrowed or
received by Detroit.
Notwithstanding anything in this Section 2, the following Restricted
Subsidiaries shall not be obligated to execute and deliver any of the
Collateral Documents or certificates described herein (nor shall any
financing statements be filed with respect to the Collateral of such
Restricted Subsidiaries) unless and until such actions have been approved
by the Michigan
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Gaming Control Board or its staff shall have determined that such approval
is not required: Detroit, MGM Grand Detroit, Inc., MGM Grand Detroit
Business Development Fund, LLC, Jefferson Acquisition Corp. and 0000 Xxxxx
Xxxxxxxx, Inc. (collectively, the "Detroit Companies"). The Company, Mirage
and the Detroit Companies agree to diligently pursue all such approvals and
determinations.
Nothing in this Agreement or any Collateral Document shall impose any
liability upon Detroit or its properties to the holders of the Company 8
1/2% Notes Due 2010 so long as Detroit's Obligations under the other Credit
Documents do not exceed that portion of the Obligations which are or have
been used, directly or indirectly, to finance the design, development,
construction or operation of the Detroit Project or which are or have been
actually borrowed or received by Detroit.
3. Liens Equal, Ratable and Pari Passu.
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(a) Subject to Section 4 hereof, the Creditor Representatives
hereby agree on behalf of their respective Creditor Groups
that, to the extent that the same are unavoidable (whether
by means of preference, fraudulent conveyance or transfer or
otherwise), and in each case to the extent that the same
secure Qualified Obligations, the Liens held by the
Collateral Agent shall be for the equal, ratable and pari
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passu benefit of the Creditor Groups to the extent of their
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respective Qualified Obligations.
(b) Subject to Section 4 hereof, the Creditor Representatives
hereby agree on behalf of their respective Creditor Groups
that, to the extent that the same are unavoidable (whether
by means of preference, fraudulent conveyance or transfer or
otherwise), and in each case to the extent that the same
secure Excess Obligations, the Liens held by the Collateral
Agent shall be for the equal, ratable and pari passu benefit
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of the Creditor Groups to the extent of their respective
Excess Obligations; provided, that Excess Obligations will
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not receive distributions from the sale or other liquidation
of Collateral unless and until the Qualified Obligations are
paid in full.
(c) In the event of any Enforcement Order, each Creditor Group
shall be entitled to equal priority in distribution through
its Creditor Representative, ratably based upon the
proportion that the Qualified Obligations owed to each of
the respective Creditor Groups bears to the aggregate amount
of the Qualified Obligations, and thereafter to the Excess
Obligations in the same manner. In the event that
Additional Qualified Obligations become entitled to the
benefits hereof in the manner contemplated by Section 4, the
related Creditors shall be entitled to equal, ratable and
pari passu distributions as if the Creditor Representatives
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of such Creditors had been original parties to this
Agreement.
(d) The relative priority of such Liens shall apply irrespective
of the time, order or manner of attachment or perfection of
such Liens and, to the extent that the same are perfected
and unavoidable (whether by means of preference, fraudulent
conveyance or transfer or otherwise), shall not be affected
by any bankruptcy, insolvency or similar event with respect
to the Company or any Restricted Subsidiary.
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(e) Because a credit bid by one or more Creditor Representatives
or Creditors at a foreclosure sale with respect to any
portion of the Collateral might be used to evade or
otherwise circumvent the requirements of equal, ratable and
pari passu distributions contemplated by this Agreement, the
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parties hereto agree that no sale of any portion of the
Collateral shall be subject to credit bidding unless all
Creditor Representatives consent in writing, such consent
not to be unreasonably withheld. Each of the parties from
time to time hereto agrees that this is a commercially
reasonable restriction on sales of the Collateral.
4. Designation of Additional Qualified Obligations. The aggregate principal
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amount of indebtedness which may become Qualified Obligations is unlimited,
but indebtedness shall become Qualified Obligations only upon its becoming
subject to the terms and conditions set forth in this Section 4. If so
permitted by the Credit Documents, the Company may from time to time by
resolution of its board of directors (or any duly authorized committee
thereof) designate any senior indebtedness or other obligations as
Qualified Obligations hereunder ("Additional Qualified Obligations") which
shall upon recordation in the Register by the Collateral Agent (and only
then) become entitled to the benefits of this Agreement. In order to
designate any such indebtedness or other obligations as Additional
Qualified Obligations, the Company shall deliver to the Collateral Agent:
(a) a certified copy of a resolution of its board of directors
(or any duly authorized committee thereof) designating the
additional indebtedness as Additional Qualified Obligations;
(b) a certificate of the chief financial officer of the Company
stating that, as of the date of such certificate, giving
effect to the incurrence of the proposed Additional
Qualified Obligations, no Trigger Event has occurred in
respect of any then Qualified Obligation and that the
Company and its Restricted Subsidiaries are entitled to
incur such Additional Qualified Obligations under the Credit
Documents evidencing all outstanding Qualified Obligations;
(c) such amendments to the Collateral Documents (with any minor
amendments or revisions required thereto) as are requested
by any Creditor Representative if, ten business days
following the circulation of a draft thereof to all of the
Creditor Representatives, no written objection to such
amendment by the Majority Representatives has been received
by the Collateral Agent or, in the event of any such
objection, such amendments as are in accordance with the
written directions of the Majority Representatives, or as
are otherwise reasonably necessary or desirable, to evidence
the continued perfection and priority of the Qualified
Obligations (including the proposed Additional Qualified
Obligations), which shall have been recorded in all
jurisdictions in which their recordation is required to
assure the continued perfection of the Liens; and
(d) such other opinions and assurances as are requested by any
Creditor Representative to assure that the priority and
perfection of the Liens securing all of the Qualified
Obligations shall retain their priority and perfection.
Upon the satisfaction of the foregoing conditions precedent, and
unless the Collateral Agent has then received written notice from
the Company, any Restricted Subsidiary, or any Creditor
Representative that a Trigger Event has occurred, the Collateral
Agent
-11-
shall promptly record the particulars of the proposed Additional
Qualified Obligations in the Register (upon which recordation they
shall constitute Qualified Obligations), and shall promptly inform in
writing each of the Company and the Creditor Representatives of such
recordation. The Company may, from time to time, examine the Register
during normal business hours of the Collateral Agent upon reasonable
prior notice.
Each of the Obligations, Creditor Representatives and like information
specifically described in the Recitals hereto or elsewhere in this
Agreement as of the date hereof shall be deemed to be Qualified
Obligations and set forth in the Register. The Collateral Agent shall
also note in the Register changes, additions or deletions to any of
the information relating to the Qualified Obligations promptly upon
the Collateral Agent's receiving written notice thereof from the
related Creditor Representative. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and
the Collateral Agent and each Creditor may conclusively presume that
each person whose name is recorded in the Register is qualified as the
Creditor Representative hereunder for the related Qualified
Obligations for all purposes under this Agreement. The Register shall
be available for inspection at Collateral Agent's office upon request
by any Creditor Representative during the normal business hours and
with reasonable prior notice. The Collateral Agent may conclusively
rely upon the accuracy of the information certified to it by each
Creditor Representative and shall have no duty whatsoever to
independently confirm its accuracy.
5. Sharing of Proceeds; Turnover. Each of the Creditor Representatives agrees
-----------------------------
on behalf of its Creditor Group that in the event that such Creditor Group
receives, from any realization upon the Liens, a greater amount than the
amount to which that Creditor Group is entitled pursuant to Section 2, they
shall turn over to the Creditor Representatives of the other Creditor
Groups, for distribution thereto in accordance with Section 2, such excess
amount. As to title insurance proceeds, the provisions of this Section are
subject to Section 9(a).
6. Amendments to Credit Documents. Each of the Creditor Groups shall be
------------------------------
entitled to enter into any amendment, modification, supplement or extension
of the Credit Documents to which they are a party with the Company and its
Restricted Subsidiaries without affecting the relative priority of their
interests in the Collateral held by the Collateral Agent. Without limiting
the generality of the foregoing sentence, each of the Obligations now
existing or hereafter arising under the Existing Credit Documents,
including Obligations arising as a result of any amendment, modification,
supplement or extension, shall constitute Qualified Obligations without the
necessity of any further action, notwithstanding any such amendment,
modification, supplement or extension.
7. Amendments to Collateral Documents. So long as no Trigger Event has
----------------------------------
occurred and remains continuing and such action is in compliance with the
applicable Credit Documents, the Company and the Restricted Subsidiaries
shall be entitled to:
(a) request that the Collateral Agent enter into amendments to and
releases of the Liens created by the Collateral Documents, and in
accordance with this Section, to release from the Lien of the
Collateral Documents any property which the Company or its
Restricted Subsidiaries have sold, leased or otherwise disposed
of in a manner which does not violate any applicable Credit
Document, or for which the Company or its Restricted Subsidiaries
are
-12-
otherwise entitled to a release of Lien pursuant to the
Credit Documents (in any event as certified to the
Collateral Agent by the Company); or
(b) request that the Collateral Agent execute, on commercial
terms, subordination, non-disturbance and estoppel
agreements with tenants in properties owned or leased by the
Company and the Restricted Subsidiaries.
Any request made by the Company and the Restricted Subsidiaries
pursuant to this Section shall be made to the Collateral Agent in
writing, with copies to each of the Creditor Representatives, and
the Company shall provide the Collateral Agent with proof of notice
to the Creditor Representatives. If, ten business days following
the circulation thereof to the Creditor Representatives (or a
shorter time not less than three business days which is specified
by the Collateral Agent to accommodate any exigent circumstances
identified by the Company), no written objection to proposed
documents responsive to any such request is received by the
Collateral Agent, the Collateral Agent shall execute the proposed
documents (with any minor amendments or revisions required thereto)
or, in the event of any such objection, shall act in accordance
with the written direction of the Majority Representatives.
8. Enforcement of the Liens.
------------------------
(a) Upon the occurrence of a Trigger Event, the Creditor
Representative of any Creditor Group which asserts the
Trigger Event may unilaterally direct the Collateral Agent
in writing to proceed to enforce the Liens granted in its
favor in accordance with this Section (such a written
direction is referred to as an "Enforcement Order"), without
the requirement of the consent or approval of any other
Creditor or Creditor Representative. Upon its receipt of
any such Enforcement Order, the Collateral Agent shall
promptly and in any event within ten business days notify
each other Creditor Representative thereof, and the Creditor
Representatives shall form a committee of the Creditor
Representatives (the "Enforcement Committee") to determine
the order and manner in which the remedies of the Collateral
Agent shall be exercised. The Majority Representatives
shall notify the Collateral Agent in writing of the
formation of the Enforcement Committee; which notice may
designate a Creditor Representative as the chair of the
Enforcement Committee. Any such chair of the Enforcement
Committee shall act or refrain from acting as directed by
the Majority Representatives, however the Collateral Agent
shall be entitled to follow the written directions of the
chair of the Enforcement Committee until notified in writing
by the Majority Representatives to the contrary and, in the
absence of written direction from the Enforcement Committee
(or any such chair) the Collateral Agent shall take no
action. Each Creditor Representative shall be entitled to
cast votes equal to the number of dollars represented by the
Qualified Obligations owed to its creditor group.
(b) No Creditor or Creditor Representative shall have any right
to institute any action or proceeding or to exercise any
other remedy provided by the Collateral Documents or by law
or equity for the purpose of realizing upon the Liens unless
(i) an Enforcement Order shall have been tendered to the
Collateral Agent and the Collateral Agent shall have failed
to act within 30 days thereafter; (ii) all Creditor
Representatives consent thereto in writing (such consent not
to be unreasonably withheld); or (iii) such Creditor
-13-
Representative is required to take such action or exercise
such remedy pursuant to the terms of its respective Credit
Documents (as they exist on the date hereof or as such
Credit Documents may be mutually amended after the date
hereof). In such case, but not otherwise, any Creditor
Representative acting on behalf of itself and the other
Creditor Representatives shall be entitled to take
proceedings in any court of competent jurisdiction such as
the Collateral Agent may have taken under this Agreement.
(c) Except as otherwise provided herein or by applicable law,
the money received from the enforcement of any Lien under
any Collateral Document shall be applied by the Collateral
Agent as follows:
First, to the Collateral Agent in such capacity only
-----
(and not as a Creditor Representative) in an amount
equal to its costs, fees, expenses, including fees and
expenses of its attorneys, agents and advisors and
indemnities in connection with its actions hereunder in
connection with the enforcement of any Lien;
Second, to each Creditor or Creditor Representative
------
which has advanced funds to the Collateral Agent in
accordance with Sections 11(a), 11(b) or 11(d)(ii)
hereof, ratably;
Third, to the payment of the Qualified Obligations,
-----
ratably in accordance with Section 3 through the
Creditor Representatives;
Fourth, ratably to the payment of all Excess
------
Obligations and to the Collateral Agent in such
capacity only (and not as a Creditor Representative) in
an amount equal to its costs, fees, expenses, to the
extent not reimbursed pursuant to clause First above,
------
including fees and expenses of its attorneys, agents
and advisors and indemnities in connection with its
actions hereunder and under the Collateral Documents
and any unpaid amounts owed to the Collateral Agent
pursuant to Section 11; and
Finally, as required by law, to the persons or persons
-------
legally entitled thereto.
9. Title Insurance; Insurance, Casualty and Condemnation Proceeds.
--------------------------------------------------------------
(a) As of the date of this Agreement, no Creditor Representative
has a right under the Credit Documents to obtain any title
insurance in respect of the Collateral. If any Creditor
Representative is hereafter entitled to any title insurance,
it is contemplated that such Creditor Representative will
separately arrange for any lenders' policies of title
insurance with respect to real property Collateral (each, a
"Title Policy"). Unless they otherwise agree, each Creditor
Representative or Creditor shall be entitled to the sole
benefit and proceeds of each Title Policy issued to that
Creditor or Creditor Representative. Any title insurance
policy which is issued for the benefit of the Collateral
Agent shall be for the ratable benefit of all Creditors.
-14-
(b) The proceeds of all other policies of insurance maintained
by the Company and its Restricted Subsidiaries as to which
each of the parties are loss payees or additional insureds,
or in which the parties hereto have any other interest,
shall be shared in the same manner as the proceeds of
Collateral described above. In the event that any insurance
or condemnation proceeds are payable to any party hereto
pursuant to their agreements with the Company and its
Restricted Subsidiaries, but under each of the relevant
Credit Documents are available to the Company or any of its
Restricted Subsidiaries for the purpose of repair,
reconstruction or replacement of the related Collateral,
each of the parties shall cooperate with one another to
establish an escrow for the retention of such proceeds
pending such repair, reconstruction or replacement. In the
event that the Company or its Restricted Subsidiaries are
not entitled to the conditional return of such insurance
proceeds, each of the Creditor Groups shall be entitled to
equal, ratable and pari passu application, in accordance
---- -----
with the terms hereof, of any funds not returned to the
Company and the Restricted Subsidiaries.
10. Marshaling of Assets; Election of Remedies; Amendments.
------------------------------------------------------
(a) Each of the parties hereto waives any right it may now or
hereafter have to require any other party to marshal assets,
to exercise rights or remedies in a particular manner, or to
forbear exercising such rights and remedies in any
particular manner or order.
(b) Each of the parties hereto will be free to exercise in such
manner and order as it elects in its discretion, fail to
exercise, waive, suspend, terminate or suffer expiration of,
any of its rights and remedies with respect to the
Collateral for the Obligations to its Creditor Group. Each
of the parties hereto will have the unfettered right, at any
time or from time to time, to release, subordinate or
otherwise diminish (whether intentionally, negligently or
otherwise) any Lien on any Collateral not required to be
released hereunder, without affecting the Liens of the other
party in such Collateral or the rights of the releasing or
subordinating party hereunder with respect to other
Collateral.
(c) This Agreement may not be amended, modified or supplemented
without the prior written consent of all the parties hereto
at the time of such proposed amendment, modification or
supplement.
11. Concerning the Collateral Agent.
-------------------------------
(a) The Collateral Agent's Costs and Expenses. The Company will
-----------------------------------------
pay to the Collateral Agent forthwith upon demand from time
to time remuneration for its services hereunder (as set
forth in a letter agreement between the Company and the
Collateral Agent) and will pay or reimburse the Collateral
Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
Collateral Agent (including the reasonable compensation and
the disbursements of its counsel and all other professional
advisors to the Collateral Agent) in connection with:
(i) the execution and administration of this Agreement;
-15-
(ii) the discharge of all or any portion of the Liens
subject to this Agreement;
(iii) the administration or execution, prior to receipt of
an Enforcement Order by the Collateral Agent, of its
duties hereunder or the Liens contemplated hereby;
or
(iv) the administration or execution, after receipt of an
Enforcement Order by the Collateral Agent, of all
duties of the Collateral Agent hereunder until
finally and fully performed;
except any such expense, disbursement or advance which
------
results from its gross negligence or bad faith or in
connection with proceedings in respect of which a final
judicial determination is made that the Collateral Agent was
not entitled to enter into such proceedings. All amounts so
payable shall bear interest as provided in a letter
agreement between the Company and the Collateral Agent. In
the event that the Company fails to pay any amount due under
this clause (a), the Collateral Agent shall give notice to
each of the Creditor Representatives of the Company's
failure to pay such amount due and of its intention to
assess the Collateral for the payment of such amount, in
which case each Creditor Representative shall have the
right, within five business days of such notice, to pay such
amount to the Collateral Agent and, if such amount due has
not been paid to Collateral Agent, in full, by the end of
such five business day period, Collateral Agent shall be
entitled to assess the Collateral for the payment of the
same.
(b) Indemnification of the Collateral Agent. The Company hereby
---------------------------------------
indemnifies the Collateral Agent (in its capacity as
Collateral Agent and in its individual or corporate
capacity) and each of its officers, directors, attorneys in
fact and agents for, and holds it harmless against, any
cost, claim, damages, loss or liability or expense
(including reasonable attorneys' fees and expenses) incurred
by it in connection with, or related to or arising from:
(i) any action or omission of the Company, Mirage or any
Restricted Subsidiary; (ii) the execution, acceptance and
administration of this Agreement and the performance of its
duties hereunder or in connection with any Collateral
Documents or any Enforcement Order; (iii) the execution of
any Collateral Documents, or the granting of any lien or
security interest on any Collateral for the benefit of the
collateral Agent; or (iv) any action taken or not taken by
Collateral Agent upon the request or instruction of the
Company, the Majority Representatives, the chair of the
Enforcement Committee, or any Creditor including the costs
and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder, except for any loss,
liability or expense incurred by reason of the Collateral
Agent's gross negligence or willful misconduct. If the
Collateral Agent incurs expenses in connection with the
occurrence of a bankruptcy or the appointment of a receiver
relating to the Company or any of the Restricted
Subsidiaries, the expenses and compensation for those
services are intended to constitute expenses of
administration under any bankruptcy or receivership law. In
the event that the Company fails to pay any amount due under
this clause (b), the Collateral Agent shall give notice to
each of the Creditor Representatives of the Company's
failure to pay such amount due
-16-
and of its intention to assess the Collateral for the
payment of such amount, in which case each Creditor
Representative shall have the right, within five business
days of such notice, to pay such amount to the Collateral
Agent and, if such amount due has not been paid to
Collateral Agent, in full, by the end of such five business
day period, Collateral Agent shall be entitled to assess the
Collateral for the payment of the same. The obligations of
the Company under this clause (b) shall survive any
satisfaction and discharge or termination of this Agreement,
including any termination under any bankruptcy or
receivership law.
(c) Amount of Qualified Obligations Outstanding. The Company
-------------------------------------------
shall promptly provide the Collateral Agent with such
information in writing relating to the Obligations and any
related commitments from time to time as the Collateral
Agent may reasonably request for the purpose of enabling the
Collateral Agent to fulfill its obligations hereunder. If
the Company shall fail to provide the Collateral Agent with
the required information within the required period, the
Collateral Agent shall be entitled to conclusively rely on a
written statement signed by the related Creditor
Representative.
(d) Conditions Precedent to Collateral Agent's Obligation to
--------------------------------------------------------
Act.
---
(i) Unless and until it shall have been required so to do
under the terms hereof, the Collateral Agent shall not
be bound to give any notice or do or take any act,
action or proceeding by virtue of the powers conferred
on it hereby; nor shall the Collateral Agent be
required to take notice of any Trigger Event or
Enforcement Order, other than in payment of any moneys
required by any provision hereof to be paid to it,
unless and until the Collateral Agent receives notice
in writing of such Trigger Event or Enforcement Order
and prior to receipt of such written notice the
Collateral Agent may assume that no Trigger Event or
Enforcement Order has occurred.
(ii) The obligation of the Collateral Agent to commence,
continue, cease or refrain from any act, action or
proceeding for the purpose of enforcing or ceasing to
enforce any rights of the Collateral Agent or the
Creditors hereunder shall be conditional upon the
Creditors (other than Creditors who act solely as a
Creditor Representative) furnishing, when required by
notice in writing by the Collateral Agent to the
Creditor Representative of such Creditors, sufficient
funds to commence or continue such act, action or
proceeding and an indemnity reasonably satisfactory to
the Collateral Agent to protect and hold harmless the
Collateral Agent against the costs, charges, expenses
and liabilities to be incurred thereby and any loss
and damage it may suffer by reason thereof except for
costs, charges and liabilities incurred by reason of
the Collateral Agent's gross negligence or willful
misconduct. Each Creditor providing such indemnity
shall be entitled to reimbursement of any and all
amounts provided by such Creditor under such indemnity
in accordance with Section 8(c).
-17-
(iii) None of the provisions contained in this Agreement
shall require the Collateral Agent to expend or risk
its own funds or otherwise incur financial liability in
the performance of any of its duties or in the exercise
of any of its rights or powers.
(iv) Anything to the contrary notwithstanding, the
Collateral Agent shall not be required to enter, take
possession of, or take any other action whatsoever with
respect to the Material Real Property, and shall not be
required to initiate foreclosure proceedings with
respect to any Mortgages unless the Collateral Agent
has been indemnified to its satisfaction as provided
herein and is satisfied that the Collateral Agent will
not be subject to any liability under any local, state
or federal environmental laws or regulations of any
kind whatsoever or from any circumstances present at
the Material Real Property relating to the presence,
use, management, disposal of, or contamination by any
environmentally hazardous materials or substances of
any kind whatsoever.
(e) Collateral Agent's Reliance. The Collateral Agent may
---------------------------
conclusively rely and shall be protected in acting upon any such
documents deposited with it in purported compliance with any such
provision or for any other purpose hereof, but may require
further evidence before acting or relying thereon. The Collateral
Agent may rely conclusively and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, letter, telegram,
cablegram or other paper or document believed by it to be genuine
and to have been signed, sent or presented by or on behalf of the
proper party or parties. However, the Collateral Agent may
require reasonable evidence of the due execution thereof before
acting or relying thereon.
(f) Experts and Advisers. The Collateral Agent may at the expense of
--------------------
the Company appoint such agents and employ or retain such
counsel, accountants, appraisers or other experts or advisers as
it may reasonably require for the purpose of discharging its
duties hereunder and shall not be responsible for any misconduct
(other than through its own gross negligence or willful
misconduct) on the part of any of them. The Collateral Agent may
pay reasonable remuneration for all services performed for it in
the discharge of its duties as Collateral Agent hereunder. The
Collateral Agent may act (but shall not be bound to act) and
shall be protected in acting in good faith on the opinion or
advice of or information obtained from any counsel, accountant,
appraiser or other expert or adviser, whether retained or
employed by the Company, any Restricted Subsidiary or by the
Collateral Agent, in relation to any matter related to or arising
in the administration of this Agreement.
(g) Cash, Documents, Etc. Paid or Delivered to the Collateral Agent.
---------------------------------------------------------------
Any cash, securities, documents of title or other instruments,
and other assets that may from time to time be paid or delivered
to the Collateral Agent by any Restricted Subsidiary to be held
for the benefit of all Creditors in accordance with the
provisions hereunder shall be so held by the Collateral Agent as
agent for the benefit of the Creditors in accordance with this
Agreement.
-18-
(h) Action by Collateral Agent to Protect Security. After the
----------------------------------------------
occurrence of a Trigger Event and prior to the first meeting
of the Enforcement Committee, the Collateral Agent shall
have power (but not any duty) to institute and to maintain
such actions and proceedings solely as directed in writing
by a Creditor Representative, as deemed necessary or
expedient by such Creditor Representative, and solely to the
extent indemnified by such Creditor Representative to its
satisfaction and upon advice of counsel, upon which it may
conclusively rely, to prevent any impairment of the Liens of
the Collateral Documents or to preserve or protect its
interests and the security and interests of the Creditors in
respect of the Collateral or in respect of the income,
earnings, rents, issues and profits therefrom, subject to
compliance with the requirements of applicable Gaming Laws.
(i) Collateral Agent Not Required to Give Security. The
----------------------------------------------
Collateral Agent shall not be required to give any bond or
security in respect of the execution of its duties as
Collateral Agent under this Agreement.
(j) Condition of the Collateral. Neither the Collateral Agent
---------------------------
nor any Creditor shall be liable for (i) any failure or
defect of title to the Collateral, (ii) any failure to
perfect the Lien of the Collateral Documents, or (iii) any
statements of fact in the recitals in this Agreement or in
any Collateral Documents. The Collateral Agent shall not be
responsible for the sufficiency, adequacy or form of any
insurance provided to the Collateral Agent pursuant to any
Collateral Documents.
(k) The Collateral Agent shall have no duty to maintain any
financing statements or maintain perfected Liens granted to
it hereunder. The Collateral Agent is not responsible for
the sufficiency, validity or enforceability of any
Collateral Documents or any other documents related thereto.
(l) Replacement of Collateral Agent. The Collateral Agent may
-------------------------------
resign and be discharged from the performance of all further
duties hereunder by giving to the Company and the Creditor
Representatives three months' notice in writing or such
shorter notice as the Company and the Majority
Representatives may approve, provided that such resigning
Collateral Agent receives payment in full of all amounts due
and owing to it hereunder prior to or upon its resignation
taking effect. The Majority Representatives may at any time
remove the Collateral Agent and appoint a new Collateral
Agent. If no Event of Default has then occurred and is
continuing, the Company may, with the written concurrence of
the Majority Representatives, remove the Collateral Agent
and appoint a new Collateral Agent. In the event of the
Collateral Agent resigning or being removed as aforesaid,
the Majority Representatives shall forthwith appoint a new
Collateral Agent. On any new appointment the new Collateral
Agent shall be vested with the same powers, rights, duties
and responsibilities as if it had been originally named
herein as Collateral Agent, without any further assurance,
conveyance, act or deed; but the Company and the Restricted
Subsidiaries shall immediately execute, at the expense of
the Company, all such conveyances or other instruments as
may be necessary or advisable for the purpose of
transferring the Collateral Documents to the new Collateral
Agent and assuring the continued perfection and priority of
the Liens thereunder.
-19-
(m) No Trust or Fiduciary Relationship. The Collateral Agent
----------------------------------
shall not be deemed to be in a relation of trust or
confidence with any Creditor Representative or Creditor by
reason of this Agreement, and shall not owe any fiduciary,
trust or other special duties to any Creditor or Creditor
Representative by reason of this Agreement. To the extent
the Collateral Agent is requested to exercise any discretion
or to make any determination with respect to any provision
of the Collateral Documents or with respect to any of the
Collateral, including the sufficiency, adequacy or
acceptability of any document or any other item furnished to
the Collateral Agent, or compliance by the Company or any
Restricted Subsidiary with any of the provisions of the
Collateral Documents, the Collateral Agent shall notify the
Creditor Representatives in writing, together with a copy of
the document, item or request, as applicable.
The parties hereto acknowledge that Collateral Agent's
duties do not include any discretionary authority,
determination, control or responsibility with respect to any
Collateral Document or any Collateral, notwithstanding any
rights or discretion that may be granted to the Collateral
Agent in such Collateral Documents. The Collateral Agent
shall have no obligation, duty or responsibility to exercise
any such discretion except as directed in writing by the
Majority Representatives or the chair of the Enforcement
Committee and solely to the extent the Collateral Agent is
indemnified to its satisfaction. The provisions of this
Agreement, including, without limitation those provisions
relating to the rights, duties, powers, privileges,
protections and indemnification of the Collateral Agent
shall apply with respect to any actions taken or not taken
by the Collateral Agent under any Collateral Documents.
The Collateral Agent shall be responsible only for the
performance of such duties as are expressly set forth
herein. The Collateral Agent shall not be responsible for
any action taken or not taken by it under this Agreement or
with respect to any Collateral Documents at the request or
direction of the Majority Representatives, the chair of the
Enforcement Committee or any Creditor.
(n) Compliance with Orders, etc.. The Collateral Agent shall
----------------------------
cooperate and comply with any order or directive of a Gaming
Board in connection with this Agreement, including that the
Collateral Agent submit an application for any license,
finding of suitability or other approval pursuant to any
Gaming Laws (unless the Collateral Agent shall have
submitted its resignation) and will comply fully and
completely in any proceedings related to such application;
provided that the Company agrees to prepare (or cause the
Restricted Subsidiaries to prepare) all documentation in
connection with any such order, directive, application or
proceeding and to reimburse the Collateral Agent for all
costs and expenses incurred by it in connection therewith.
12. Further Assurances, etc. Each party hereto shall execute and deliver such
-----------------------
other documents and instruments, in form and substance reasonably
satisfactory to the other parties hereto, and shall take such other action,
in each case as any other party hereto may reasonably have requested (at
the cost and expense of the Company) to effectuate and carry out the
provisions of this Agreement, including by recording or filing this
Agreement or such other documents or instruments in such places as the
requesting party may reasonably request.
-20-
13. Additional Restricted Subsidiaries.
----------------------------------
(a) Subject to Section 13(b) hereof, the Company and the
Restricted Subsidiaries party hereto hereby agree that they
shall, concurrently with the formation or acquisition of any
new Restricted Subsidiary (an "Additional Restricted
Subsidiary), cause that Additional Restricted Subsidiary to
enter into a joinder hereto, substantially in the form of
Exhibit C hereto, concurrently with the execution and
delivery of any Collateral Documents which are then required
to be delivered by that Additional Restricted Subsidiary
pursuant to any then applicable Credit Documents. To the
extent that the equity securities of that Additional
Restricted Subsidiary are then required to be delivered in
pledge to secure any Obligations, the same shall be
delivered to and held by Collateral Agent in accordance with
the terms hereof.
(b) Nothing in this Agreement or any Collateral Document shall
require (i) an Additional Restricted Subsidiary to execute
and deliver any Collateral Document or (ii) the Company or
any relevant Restricted Subsidiary to pledge the capital
stock or other equity interests of such Additional
Restricted Subsidiary to the extent that such action would
violate applicable Gaming Laws until the Company, the
Additional Restricted Subsidiary or any other relevant
Restricted Subsidiary has obtained any necessary approvals
or consents of any Gaming Boards or Government Agencies.
Each of the Company, such Additional Restricted Subsidiary
and any other relevant Restricted Subsidiaries shall
diligently pursue such necessary approvals and consents,
including submitting applications for such approvals and
consents at the same time as applications for gaming
licenses for any such Additional Restricted Subsidiary.
14. Release of Liens. In the event that the Company and its Restricted
----------------
Subsidiaries are entitled to the release of the Collateral under the
applicable Credit Documents, each Creditor Representative shall promptly
confirm in writing to the Collateral Agent its authority to provide
evidence of such release to the Company and the Restricted Subsidiaries
and, upon such confirmation, the Collateral Agent shall execute appropriate
documentation of the same and of the termination of this Agreement provided
or caused to be provided to it by the Company subject to the payment by the
Company of its remaining costs and expenses.
15. Notices. All notices, requests, demands, directions and other
-------
communications provided for hereunder must be in writing and must be mailed
(by registered or certified mail), telecopied, dispatched by commercial
courier or delivered to the appropriate party at the address set forth on
the signature pages of this Agreement or to such other address as may be
designated by a party in a written notice sent to all other parties in
accordance with this Section.
16. Integration. This Agreement, including exhibits hereto, sets forth the
-----------
entire understanding of the parties with respect to the within matters and
may not be modified or amended except upon a writing signed by all parties.
In the event of any conflict or inconsistency between this Agreement and
any Collateral Document, the provisions of this Agreement shall govern.
17. Counterparts. This Agreement may be executed in one or more counterparts,
------------
each one of which when so executed shall be deemed to be an original, and
all of which taken together shall constitute one and the same agreement.
-21-
18. No Third Parties Benefited. Except for the Creditors (including each
--------------------------
future Creditor in respect of Additional Qualified Obligations), no persons
not a party to this Agreement are intended to be third party beneficiaries
hereunder or to have any right, benefit, priority, or interest under, or
because of the existence of, or to have any right to enforce, this
Agreement.
19. Construction. "Includes" and "including" are not limiting. "Or" is not
------------
exclusive. "All" includes "any" and "any" includes "all".
20. Governing Law. This Agreement shall be governed by, and construed and
-------------
enforced in accordance with, the internal laws of the State of Nevada,
without reference to the choice of law or conflicts of law provisions
thereof.
21. Confidentiality. The Collateral Agent agrees to hold any confidential
---------------
information that it may receive from the Company or the Restricted
Subsidiaries pursuant to this Agreement in confidence, except for
disclosure: (a) to the Creditors (or, subject to appropriate
confidentiality restrictions, affiliates of any Creditors); (b) to legal
counsel and accountants for any Creditor or for the Collateral Agent; (c)
to other professional advisors to the Company or the Restricted
Subsidiaries, the Collateral Agent or any Creditor, provided that the
recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section; (d) to regulatory
officials having jurisdiction over the Collateral Agent; (e) to any Gaming
Board having regulatory jurisdiction over the Company or its Restricted
Subsidiaries, provided that the Collateral Agent agrees to use its best
efforts to notify the Company of any such disclosure unless prohibited by
applicable laws; (f) as required by law or legal process or in connection
with any legal proceeding to which the Collateral Agent and the Company or
any of its Subsidiaries are adverse parties; and (g) to another financial
institution in connection with a disposition or proposed disposition to
that financial institution of all or part of the Collateral Agent's
interests hereunder, provided that the recipient has accepted such
information subject to a confidentiality agreement substantially similar to
this Section. For purposes of the foregoing, "confidential information"
shall mean any information respecting the Company or its Restricted
Subsidiaries reasonably considered by the Company to be confidential and
specified in writing by the Company to the Collateral Agent, other than (i)
information previously filed with any Governmental Agency and available to
the public, (ii) information previously published in any public medium from
a source other than, directly or indirectly, the Collateral Agent, and
(iii) information previously disclosed by the Company or its Subsidiaries
to any Person not associated with the Company without a confidentiality
agreement or obligation substantially similar to this Section. Nothing in
this Section shall be construed to create or give rise to any fiduciary
duty on the part of the Collateral Agent to the Company, its Subsidiaries
or any other party.
22. Compliance with New Jersey Gaming Laws. If the Company, Mirage or any
--------------------------------------
Restricted Subsidiary becomes a New Jersey casino licensee or the holding
company of a New Jersey casino licensee, this Intercreditor Agreement and
the Collateral Documents and certain of the rights and remedies of the
respective parties thereto will be subject to compliance with the New
Jersey Casino Control Act and the rules and regulations promulgated
thereunder.
23. Non-Involvement of Tracinda. The parties hereto acknowledge that neither
---------------------------
Xxxx Xxxxxxxxx nor Tracinda Corporation, individually or collectively, is a
party to this Agreement or any of the other Collateral Documents executed
on the date hereof. The parties hereto further acknowledge that neither
Xx. Xxxxxxxxx nor Tracinda Corporation shall have any liability whatsoever
with respect to this Agreement. Accordingly, the parties hereto hereby
agree that in the event (i) there is any breach or default or alleged
breach or default by any party under
-22-
this Agreement or any such Collateral Document, or (ii) any party hereto
has or may have any claim arising from or relating to any such Collateral
Document, no party hereto, nor any party claiming through it (to the extent
permitted by applicable law), shall commence any proceedings or otherwise
seek to impose any liability whatsoever against Xx. Xxxxxxxxx or Tracinda
Corporation by reason of such alleged breach, default or claim.
[Remainder of this page intentionally left blank]
-23-
IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement as of the date first written above by their duly authorized
representatives.
U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------
Xxxx X. Xxxxxxxxxx
Vice President
Address for notices:
U.S. Bank National Association
Corporate Trust Department
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANK OF AMERICA, N.A., as Administrative Agent under
the Multi-Year Loan Agreement and the Short Term Loan
Agreement
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx, Vice President
Address for Notices:
Bank of America, N.A.
Agency Management Services
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
JPMORGAN CHASE BANK (successor in interest to PNC Bank,
National Association), in its capacity as trustee for
the holders of the Company 6.95% Notes Due 2005, the
Mirage 6.625% Notes Due 2005, and the Mirage 6.75%
Notes Due 2008
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
Vice President
Address for notices:
JPMorgan Chase Bank
Institutional Trust Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BNY WESTERN TRUST COMPANY, as successor to U.S. Trust
Company, National Association, in its capacity as
trustee for the holders of the Company 6 7/8% Notes Due
2008 and the Company 8 1/2% Notes Due 2010
By: /s/ Xxxxx & Parks
------------------------------------
Xxxxx & Parks
Vice President
Address for Notices:
BNY Western Trust Company, as successor to
U.S. Trust Company, National Association, as Trustee
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxx & Parks, Vice President
U.S. BANK NATIONAL ASSOCIATION (formerly
known as FIRSTAR BANK OF MINNESOTA, N.A.),
in its capacity as trustee for the holders of the
Mirage 7.25% Notes Due 2006
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
Vice President
Address for Notices:
U.S. Bank National Association
Corporate Trust Department
000 X. Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
(successor to First Security Bank, National
Association), in its capacity as trustee for the
holders of the Mirage 6.75% Notes Due 2007 and the
Mirage 7.25% Debentures Due 2017
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Title: Xxxxxx X. Xxxxxxx, ASSISTANT VICE PRESIDENT
Address for Notices:
Xxxxx Fargo Bank Northwest, as Trustee
00 X. Xxxx Xxxxxx, 0/xx/ Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone (000) 000-0000
Telecopier: (000) 000-0000
Attn: Corporate Trust Department
By executing this Agreement in the space provided below, the undersigned consent
and agree to the terms of this Agreement, agree not to take any action in
contravention of this Agreement, and to pay the reasonable costs and expenses
incurred by the Collateral Agent and each Creditor Representative in connection
with the preparation, execution, delivery, administration and enforcement of
this Agreement and the instruments, documents and agreements referred to herein.
The undersigned also agree that the execution of this Agreement is in
furtherance of the transactions contemplated by the Credit Documents, and that,
as a consequence, the parties are entitled to all of the various
indemnifications provided to them by the Credit Documents with respect to
actions and omissions under this Agreement.
MGM MIRAGE, a Delaware corporation
AC HOLDING CORP., a Nevada corporation
AC HOLDING CORP. II, a Nevada corporation
BEAU RIVAGE MARKETING CORP., a Nevada corporation
BELLAGIO, LLC, a Nevada limited liability company
BOARDWALK CASINO, INC., a Nevada corporation
COUNTRY STAR LAS VEGAS, LLC, a Nevada limited liability company
DESTRON, INC., a Nevada corporation
DESTRON MARKETING, INC., a Nevada corporation
GNL, CORP., a Nevada corporation
GNLV, CORP., a Nevada corporation
GNLV MARKETING CORP. - CANADA, a Nevada corporation
GNS FINANCE CORP., a Nevada corporation
GOLDEN NUGGET AVIATION CORP., a Nevada corporation
GOLDEN NUGGET EXPERIENCE, LLC, a Nevada limited liability company
GOLDEN NUGGET FINANCE CORP., a Nevada corporation
GOLDEN NUGGET MANUFACTURING CORP., a Nevada corporation
GOLDEN NUGGET MARKETING CORP. - ILLINOIS, a Nevada corporation
GRAND LAUNDRY, INC., a Nevada corporation
LV CONCRETE CORP., a Nevada corporation
METROPOLITAN MARKETING, LLC, a Nevada limited liability company
MGM GRAND HOTEL, LLC, a Nevada limited liability company
MGM GRAND MOVIEWORLD, INC., a Nevada corporation
MGM GRAND RESORTS, LLC, a Nevada limited liability company
MGM MIRAGE ADVERTISING, INC., a Nevada corporation
MGM MIRAGE DESIGN GROUP, a Nevada corporation
MGM MIRAGE DEVELOPMENT, INC., a Nevada corporation
MGM MIRAGE ENTERTAINMENT AND SPORTS, a Nevada corporation
MGM MIRAGE HUMAN RESOURCES, INC., a Nevada corporation
MGM MIRAGE INTERNATIONAL, a Nevada corporation
MGM MIRAGE OPERATIONS, INC., a Nevada corporation
MGM MIRAGE RESTAURANT DEVELOPMENT, LLC, a Nevada limited liability company
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Assistant Secretary
of each of the foregoing other than
MGM MIRAGE and Vice President -
Assistant General Counsel and Assistant
Secretary of MGM MIRAGE
MGM MIRAGE RETAIL, a Nevada corporation
MGM MIRAGE RISK MANAGEMENT, a Nevada corporation
MH, INC., a Nevada corporation
M.I.R. TRAVEL, a Nevada corporation
MIRAGE LAUNDRY SERVICES CORP., a Nevada corporation
MIRAGE LEASING CORP., a Nevada corporation
MIRAGE RESORTS, INCORPORATED, a Nevada corporation
MRGS CORP., a Nevada corporation
NEW PRMA LAS VEGAS, INC., a Nevada corporation
NEW YORK - NEW YORK HOTEL & CASINO, LLC, a Nevada limited liability company
PRMA LAND DEVELOPMENT COMPANY, a Nevada corporation
PRMA, LLC, a Nevada limited liability company
RESTAURANT VENTURES OF NEVADA, INC., a Nevada corporation
THE XXXXX XXXX COMPANIES, a Nevada corporation
THE MIRAGE CASINO-HOTEL, a Nevada corporation
THE PRIMADONNA COMPANY, LLC, a Nevada limited liability company
TREASURE ISLAND CORP., a Nevada corporation
TREASURE ISLAND PRODUCTIONS, INC., a Nevada corporation
VIDIAD, a Nevada corporation
BEAU RIVAGE DISTRIBUTION CORP., a Mississippi corporation
BEAU RIVAGE RESORTS, INC., a Mississippi corporation
BUNGALOW, INC., a Mississippi corporation
D.A.P. CORPORATION, a Pennsylvania corporation
EGARIM, INC., an Alabama corporation
GOLDEN NUGGET MARKETING CORP., a California corporation
GOLDEN NUGGET MARKETING CORP., a Texas corporation
JEFFERSON ACQUISITION CORP., a Michigan corporation
MAC CORP., a New Jersey corporation
MGM GRAND ATLANTIC CITY, INC., a New Jersey corporation
MGM GRAND DETROIT, INC., a Delaware corporation
MGM GRAND DETROIT, LLC, a Delaware limited liability company
MGM GRAND DETROIT BUSINESS DEVELOPMENT FUND, LLC, a Delaware limited liability
company
MIRAGE RESORTS OF MARYLAND, INC., a Maryland corporation
PRMA-MS, INC., a Mississippi corporation
SHCR CORP., a Texas corporation
0000 XXXXX XXXXXXXX, INC., a Michigan corporation
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx, Assistant Secretary
of each of the foregoing
c/o Bellagio
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx, General Counsel
Xxxxx Xxxxxx, Assistant General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
